Opinion
No. AS–09097–07.
2011-06-23
In the Matter of the Permanency Hearing Regarding AUSTIN M., A Child under the Age of 21 Who Has Been Freed for Adoption.
Monroe County Law Department, by Patricia L. Woehrlen, Esq., for Petitioner. The Legal Aid Society, by Katie E. Woodruff, Esq., for the Child.
Monroe County Law Department, by Patricia L. Woehrlen, Esq., for Petitioner. The Legal Aid Society, by Katie E. Woodruff, Esq., for the Child.
DANDREA L. RUHLMANN, J.
Has Petitioner Monroe County Department of Human Services (MCDHS) exercised reasonable efforts in effectuating Austin M.'s permanency goal of adoption over the last six months? No, while the Court approves the goal of adoption for Austin, the Court also makes a no reasonable efforts finding.
Austin M. (dob:—/—/—) and his biological brother Brandon (dob:—/—/—) were both removed from their biological mother and placed in foster care in 2004. Brandon was freed for adoption in June 2006 and subsequently adopted by his foster mother Jeanette S. in 2007. Austin was freed for adoption in November 2007; since the Court has conducted permanency hearings for Austin twice annually which have approved the reasonable efforts of the MCDHS to effectuate Austin's permanency goal of adoption. Since being freed for adoption Austin has been in residential treatment and in two prospective adoptive homes which failed; his only consistency Jeanette S. and Brandon, who visited him, until all sibling visitation ceased when Austin was placed in the K. foster home.
At the most recent permanency hearing held on September 13, 2010 the Court learned that Austin's proposed adoptive placement with the K. family had disrupted and Austin was placed at the Titan House Program of New Directions. On consent of the parties the Court continued the goal of adoption and found reasonable efforts: the Court however emphasized that Austin was to have contact with his brother Brandon that could begin with telephone contact but would quickly be expanded to visits no shorter than one hour in duration. On September 14, 2010 Jeanette S. wrote a letter to MCDHS reiterating her desire to be considered a foster care placement for Austin. On November 10, 2010, by Order to Show Cause, Austin's attorney requested that Austin be immediately placed in Jeanette S.'s home with his brother.
At the scheduled permanency hearing on February 17, 2011, Austin's attorney refused to consent to MCDHS's reasonable efforts to effectuate Austin's adoption, arguing that it is MCDHS's burden to demonstrate its efforts. Petitioner presented one witness: Monroe County Department of Human Services Senior Caseworker for the Adoption Unit Mary S.. The Court also previously heard in camera testimony from Austin regarding the order to show cause filed by his attorney and as the Court is required to engage in an age appropriate consultation with the child (Family Court Act § 1089[d][2][iii] ), it considered this testimony as well.
After each permanency hearing, a court shall, upon the proof adduced, which includes age-appropriate consultation with the child, and in accordance with the best interests and safety of the child, determine and issue its findings including the permanency goal and determining whether reasonable efforts have been made to effectuate the child's permanency plan (Family Court Act § 1089 [d][2][iii] ). Where a child has been freed for adoption, the permanency order may also direct that such child be placed for adoption in the foster family home where he or she resides or has resided or with any other suitable person or persons (Family Court Act § 1089[d][2] [viii][B][i] ).
Caseworker S. testified that commencing in August 2010 MCDHS conducted a targeted homestudy to locate a new adoptive placement for Austin, after Austin was removed from the K. family foster home due at least in part to inappropriate behavior by the foster father. MCDHS determined that Austin's placement must be with: (1) a pre-adoptive home located in western New York to facilitate visitation between Austin and Brandon; (2) a two-parent family with a nuturing but limit-setting Father figure; (3) a “seasoned” family to better understand Austin's trauma; and (4) a family where Austin could be the only child or the youngest child. The caseworker testified that she solicited home studies from twelve agencies and received eight home studies, including the M. family from Hillside and Jeanette S. from Gateway–Longview. She testified that Ms. S.'s homestudy was conducted in June 2010 and she gave it serious consideration but her home did not meet the criteria and the caseworker had serious concerns about Austin living with Brandon. Austin was instead placed with the M. family in February 2011, despite that the M. family also does not meet MCDHS's criteria as they have a three-year-old foster son and their grandchildren visit their home frequently.
Austin was placed with Jeanette S. for a short time prior to being hospitalized at Western New York Psychiatric Center in 2005. The caseworker testified that when Austin was first placed in foster care in 2004 he injured Brandon by punching him and pushing him downstairs. Prior to being hospitalized in August 2005 Austin put a pillow over Brandon's face and chanted “you like him better.” After being stabilized at the Western New York Psychiatric center Austin moved to the Conners Residential Treatment Center and was placed in the R. and K. foster homes. Ms. S. and Brandon consistently visited Austin when he was in residential treatment and in the R. family foster home. Visitation however ceased when Austin was placed with the K. family. Austin's in camera testimony made clear that Austin knows and loves both Ms. S. and Brandon.
In Matter of Taylor EE (80 AD3d 822 [3d Dept 2011] ) the Appellate Court affirmed Family Court's findings of no reasonable efforts where the Petitioner did not find a permanency resource for a child placed in residential care. There, although the child's three siblings were adopted by one family, petitioner did not inquire of the adoptive mother whether she would consider to be a permanency resource for the child until the day of the hearing ( compare Matter of Michael WW., 45 AD3d 1227, 1228–1229 [3d Dept 2007] [efforts reasonable to achieve permanency goal of adoption where petitioner listed child in photo-list; maintained contact with a former foster parent and current foster parent for child's brother and kept Family Court informed of its placement progress through biweekly written reports]; Matter of Bianca QQ, 80 AD3d 809 [3d Dept 2011] [efforts reasonable to achieve permanency goal of return to parent despite that petitioner should provide more specificity in its permanency reports regarding dates services were provided] ).
Family Court Act § 1055(I) and Social Services Law § 358–a (11)(b) and 384–a (1)(a) state:
Placement or regular visitation and communication with siblings or half-siblings shall be presumptively in the child's best interests unless such placement or visitation and communication would be contrary to the child's health, safety or welfare, or the lack of geographic proximity precludes or prevents visitation [emphasis added].
Foster children who are siblings may be separated only if proven after evaluation by professional staff that placement together is contrary to the health, safety or welfare of one of more of the children (18 NYCRR § 431.10 [a][b] ).
Here Austin and Brandon were together removed from the home of their biological mother where they witnessed domestic violence in 2004; the latest incidents of Austin's displays of aggression against his brother were six years ago when the boys were not yet freed for adoption; since that time Brandon has been in continuous treatment and therapy and many positive visits between the brothers occurred until visitation ceased. Despite the lack of visits, Ms. S. continued to advocate for Austin and continued to advocate for visits between her son Brandon and Austin. The Attorney for the Child has continued to advocate for visits between Austin and Brandon. At each and every permanency the Court has continued to emphasize that the brothers should maintain a relationship—most recently the Court required that the visits were to occur during the six months immediately preceding the current hearing.
The caseworker testified that Austin continues to exhibit assaultive behaviors with peers and screams, kicks, bites and punches. She further testified that Brandon has high needs and in July 2009 Brandon was approved post-adoption to receive an exceptional subsidy rate. She said that because both brothers have exceptional needs and experienced domestic violence while in the same household that they have a tendency to display aggression when together. She further testified that the Director of the Titan House told Caseworker Marcia M. that Austin is an “emotionally fragile child that will not be able to live with his brother.” Austin's counselor and clinician at the Titan House Mark M. reported that Austin's biggest trigger is with peers and although Austin is receptive to counseling, he is not able to implement skills even though he is able to articulate them.
While this hearsay evidence is admissible at the permanency hearing, there was neither proof of how either Ms. F. or Mr. M. arrived at their opinions, nor their credentials to make such opinions. MCDHS failed to proffer evidence of a recent evaluation of Austin prohibiting placement with Brandon—or at the very least consistent visitation as required unless contrary to the health, safety or welfare of Austin and/or Brandon (18 NYCRR § 431.10[a][b] ). To the contrary both Brandon's mother and the Attorney for the Child maintain residing together would be in the brothers' best interest.
The Court therefore approves Austin's permanency goal but finds that Petitioner did not make reasonable efforts towards this goal by failing to at the least provide adequate sibling visitation—and home visits to Ms. S. to make an appropriate inquiry as to whether she would be an appropriate foster care placement. The Court hereby orders that a minimum of weekly visitation shall take place between Austin and Brandon and MCDHS shall arrange for a further homestudy and seriously consider Ms. S. as an adoptive resource for Austin in accordance with Family Court Act § 255 (Family Court Act § 1089 [d][2] [viii] [H] ). The Court will not order Austin's immediate placement with Ms. S.—though it could ( seeFamily Court Act § 1089[d][2] [viii] [B] [i]; Matter of Adrienne M., 201 A.D.2d 938 [4th Dept 1994] )—as such placement would be premature without further inquiry.
NOW, THEREFORE, it is hereby
ADJUDGED that Monroe County Department of Human Services did not engage in reasonable efforts to effectuate Austin M.'s permanency goal of adoption for the time period; and it is further
ORDERED that the permanency goal for Austin M. is adoption; and it is further
ORDERED that Monroe County Department of Human Services is charged with investigating Jeanette S. as a potential adoptive resource for Austin M. and shall report to the Court regarding such investigation; and it is further
ORDERED that Austin M. shall have sibling visits with his brother Brandon at least once weekly supervised by Jeanette S.; and it is further
ORDERED that Monroe County Department of Human Services shall arrange or provide transportation for such visitation.