Opinion
B-XXXX-19
09-16-2020
Matter of S.P. and W.P.
Appearances by counsel: Maggie Seikaly, Esq., on behalf of the Onondaga County Department of Children and Family Services, David Tamber, Esq., Syracuse, New York for the Respondent-mother; Diana Cunningham, Esq., of Syracuse, New York for the Respondent-father; Karen Vedder, Esq., of Syracuse, New York for the foster parents; Darlene O'Kane, Esq. as Attorney for the Children of Syracuse, New York.
Appearances by counsel: Maggie Seikaly, Esq., on behalf of the Onondaga County Department of Children and Family Services, David Tamber, Esq., Syracuse, New York for the Respondent-mother; Diana Cunningham, Esq., of Syracuse, New York for the Respondent-father; Karen Vedder, Esq., of Syracuse, New York for the foster parents; Darlene O'Kane, Esq. as Attorney for the Children of Syracuse, New York.
Presently before the Court is a petition to terminate the parental rights of Ms. B. P. (the Mother) and Mr. S. P. (the Father) to their children, five-year-old S. and three-year-old W. The child S. was initially removed from the care of the Respondents by this Court on July 10, 2015 upon the filing of a neglect petition by the Onondaga County Department of Children Family Services (DCFS) under Docket number NN-XXXX-15. The placement of the child was modified to the maternal aunt and her husband, M. and D. C., on August 17, 2015. The child was adjudicated to be neglected after a trial on May 12, 2016. The Court's determination that Ms. P. neglected the child Sean was affirmed by the Appellate Division, Fourth Department (Matter of Sean P., 156 AD3d 1339 [4th Dept 2017]; lv denied, 31 NY3d 903 [2018]). The Appellate Division, Fourth Department subsequently affirmed the adjudication of neglect as to Mr. P. as well (Matter of Sean P., 162 AD3d 1520 [4th Dept 2018]; lv denied, 32 NY3d 905 [2018]).
The child W. was removed from the care of the Respondents on March 9, 2017 (NN-XXXX-17). The child was placed with suitable relatives, D.C. and M.C. The child was adjudicated to be neglected by an Order of Fact-Finding and Disposition dated May 1, 2018. The placement of both children was changed to foster care on October 24, 2017 when the C.s became certified foster parents.
The Court takes judicial notice of the prior orders in the related neglect proceedings, specifically the Order of Fact-finding and Disposition dated May 12, 2016 under Docket number NN-3540-15 for the child S., the Order of Fact-finding and Disposition dated May 1, 2018 for the child W. and the permanency hearing orders issued on February 10, 2016, August 26, 2016, and March 9, 2017 for the child S. and the permanency hearing orders issued on August 30, 2017, February 28, 2018, September 24, 2018, March 26, 2019, October 18, 2019 and July 30, 2020 for both children. The children are currently in the care of the Onondaga County Department of Children and Family Services, in a kinship foster care placement.
On March 20, 2019, the Petitioner DCFS filed a petition seeking to terminate the parental rights of the parents. The petition alleged that the parents permanently neglected the children for a period from May 1, 2017 to December 30, 2018, and that DCFS made diligent efforts to encourage and strengthen the parental relationship. Both parents were assigned counsel and have been represented by counsel throughout these proceedings. Ms. P. filed a family offense petition against her sister, M.C. (the foster mother of the children), which has been heard simultaneously with these proceedings, and dismissed after a hearing on February 27, 2020. Ms. C. has also been represented by counsel. The Court recognizes the outstanding efforts of all counsel in these proceedings.
The TPR matter came on for a fact-finding trial on August 6, 2019 and continued on August 7, 2019, September 24, 2019, October 30, 2019, January 2, 2020, January 3, 2020, January 7, 2020, February 26, 2020, February 27, 2020 and March 13, 2020. The trial was interrupted due to the COVID-19 pandemic, but resumed on September 8, 2020 and September 9, 2020 with a hybrid approach wherein the Respondents and their counsel appeared in the courtroom and the Petitioner, Deputy County Attorney, the Attorney for the Child and counsel for the foster parents appeared via Skype for Business. The Court heard from the following witnesses: Ms. J.G., DCFS caseworker, Dr. P. L., Ms. K.A., Ms. K. P., Ms. C. B., Mr. R. S., Ms. D. W., Ms. P. and Mr. P. The Court has had the unique opportunity to observe the witnesses and their demeanor and evaluate their credibility. Now, after due and careful deliberation, the Court makes the following determination:
DCFS caseworker Ms. J. G. commenced her testimony on August 6, 2019 and continued on August 7, 2019, September 24, 2019, October 30, 2019 and January 2, 2020. Ms. G. testified that she was the permanency caseworker assigned to this family from November 22, 2016 until April 10, 2019. She testified that Ms. P.'s service plan included mental health treatment, domestic violence services, sex offender education and clinical visitation services. According to Ms. G., the Respondents' financial situation was not an impediment to them being able to complete services for the return of their children. Ms. G. testified concerning the efforts she made to return the children to the Respondents, including discussing the service plan, making referrals for services, reviewing the Respondent' progress in those services, encouraging visitation with the subject children and offering bus passes for transportation to services. She additionally sent monthly letters to the Respondents that included information on the children, a copy of the dispositional order and a copy of the service plan. The Respondents were encouraged to attend Service Plan Reviews. Ms. G. testified that Mr. P. attended all three of the service plan reviews during the time period alleged in the petition, while Ms. P. only attended the last one, held in July of 2018. Ms. G. further testified that she met face-to face with the Respondents on multiple occasions, and drove Ms. P. to the H. Psychiatric Center and discussed services with her. She exchanged telephone calls and text messages with Mr. P. multiple times per month.
Ms. G. testified that Ms. P. had no stable residence during the period of time that she worked with her. After Ms. P. returned from Texas in February, 2017, she moved between several different residences, living with various people.
Ms. G. testified to the visitation plan for both Respondents. Ms. P. was referred to the Family Place on July 17, 2017, but Family Place was unable to reach her. From September of 2017 to November of 2017, Ms. P. was provided weekly visits at the Civic Center. A second referral for Family Place was initiated in October, 2017 and Ms. P. commenced visitation with the HOPE program through HFC on December 7, 2017. According to Ms. G., HFC closed Ms. P.'s case in June of 2018 due to poor attendance. Thereafter, Ms. G. provided visits at the Civic Center. With respect to Mr. P., he was provided with twice per week visitation until February of 2018 through the Family Place and HFC, which were strictly supervised due to the fact that Mr. P. is a level three sex offender.
Ms. G. testified that Ms. P. engaged in mental health treatment on and off during the time that she was involved with the family. She enrolled in the Steps to Protect program and completed the intake, then met with the counselor, but was not taking classes. Ms. G. testified that Ms. P. was engaged in visitation services, but missed a lot of the counseling portion of the visits. Eventually, Ms. P.'s visits were shortened by HFC due to Ms. P.'s behavior. Ms. P. did not engage in services through V.H. during the time period alleged in the petition. During the visits that Ms. G. supervised, she observed minimal bonding between Ms. P. and the children.
Ms. G. then testified abut Mr. P.'s involvement with services. According to Ms. G., Dr. H. completed a psychological evaluation of Mr. P. on October 27, 2015, determined that he should not parent and recommended mental health services from a PhD level therapist. Mr. P. refused to sign a release for the report, but told Ms. G. the report said "he should never parent again" and felt it was part of a conspiracy against him. Ms. G. then offered referrals for therapists, but Mr. P. told her he would find one on his own. He never did so. Ms. G. testified that Mr. P. believed that Dr. H.'s evaluation was obtained illegally. Ms. G. made a referral for a full forensic psychological evaluation for Mr. P. at the recommendation of Dr. K., but Mr. P. told her he wanted to schedule his own appointment. When Mr. P. did not do so, Ms. G. scheduled an appointment for Mr. P. with Dr. N. L. for May 24, 2018. Mr. P. did not attend the appointment. He later completed an evaluation with Dr. R.K. in July of 2018. According to Ms. G., Mr. P. was chaotic and unpredictable in his dealings with her, and would often focus on what he perceived to be past injustices (removing the children) rather than the permanency hearing goal of reunification.
Ms. G. acknowledged during cross-examination that Mr. P. was engaged in mental health treatment with Mr. R.B., MSW, but maintained that Mr. P. never engaged in treatment with a PhD level therapist as recommended by Dr. H., despite her referrals. She specifically testified that she provided Mr. P. with the names of two PhD level therapists, but that Mr. P. never engaged in treatment with them. Ms. G. testified that Mr. P. has completed NuStep sex offender counseling, domestic violence classes and anger management counseling.
Ms. G. additionally testified that Mr. P. asked to have the children removed from the foster parents, alleging that it was a hostile environment, that they did not get along with him, and that they continuously note that he is a sex offender. Additionally, Mr. P. has alleged that the children have been injured in the foster parents' care, but according to Ms. G., all injuries have been investigated by DCFS and unfounded. The Court finds Ms. G. to be a very credible and reliable witness, with excellent recall of the details of her involvement with this family.
Dr. P. L. testified on January 2, 2020 on behalf of DCFS. Dr. L. served as a HOPE family counselor, supervising visitation and providing pre- and post-visitation counseling for over nine years. She has a Masters' Degree in Social Work, along with a Doctorate degree. Dr. L. assisted the family from December 7, 2017 until June 28, 2018, specifically providing Ms. P. with supervised visits for the two children. She testified that she provided continuous supervision of Ms. P.'s visits, which were originally scheduled for two and one-half hours per week. They consisted of a 90 minute visit and 60 minutes of pre- and post-visitation counseling. In March of 2018, Dr. L. shortened Ms. P.'s visits because Ms. P. was not attending the post- visitation counseling. According to Dr. L., she established goals for Ms. P., which included consistently attending visits and that Ms. P. would engage the children in age-appropriate activities. Neither goal was achieved. On March 1, 2018, Ms. P. signed an attendance contract with HFC. On September 7, 2018, Ms. P.'s case was re-opened for bi-weekly, one hour visits. On December 31, 2018, Ms. P.'s case closed once again, after Ms. P. brought a live rabbit to the visit with her in an oversized bag. Ms. P. claimed it was an emotional support bunny and became upset when Dr. L. told her she needed a medical excuse to bring the rabbit, began screaming and yelling and eventually stormed off. Dr. L. additionally testified that Ms. P. often brought too much food to the visits and that the boys would become ill. Dr. L. testified that the counseling was not well received by Ms. P.. The Court finds Dr. L.'s testimony to be extremely credible and reliable.
On January 3, 2020, Ms. K.A. testified. She is employed at H. Psychiatric Center as a Rehabilitation Counselor and holds both a Bachelor's Degree and Masters' degree. Ms. A. testified that she oversees the Outpatient Program, including Member Support Services and the Rehabilitation program. According to Ms. A., Ms. P. was in and out of her programs at H. for several years. Ms. A. testified that Ms. P. first became involved with the anger management group meeting, which was held once per week for 60 minutes, in December of 2017. According to Ms. A., Ms. P. attended the sessions but appeared disinterested. A monthly review held on March 5, 2018 noted that Ms. P. was angry, living in various locations and would yell and walk away. By April 6, 2018, Ms. A. noted that Ms. P. was not consistently attending the group and staying at the Rescue Mission or with a boyfriend from the group, but was paying attention during the sessions. Ms. A. discussed each monthly review that she conducted, noting that Ms. P.'s attendance was sporadic and that she had missed numerous sessions. According to Ms. A., Ms. P. advised her that she was at one time living with R.B., who was also attending sessions. Ms. A. testified that Ms. P. did not accomplish her goal to improve her social skills. In November of 2018, Ms. P. was discharged from the program.
Ms. K. P., a social worker at H. Psychiatric Center, also testified on January 3, 2020 and completed her testimony on January 7, 2020. Ms. K.P. is a licensed social worker and has worked at the W.S. Clinic for almost four years. She provides mental health treatment to adults. Ms. K.P. testified that she treated Ms. P. from December 21, 2017 until December 30, 2018, meeting with her every two to three weeks. According to Ms. K.P., Ms. P. missed appointments with her on January 9, 2018, January 26, 2018, February 2, 2018, February 23, 2018, March 30, 2018, April 9, 2018, April 27, 2018, June 7, 2018, July 10, 2018, July 31, 2018, August 21, 2018.
Ms. K.P. testified as to numerous sessions that she conducted with Ms. P.. On March 5, 2018, Ms. P. kept her appointment with Ms. K.P. and revealed that she had been assaulted by her husband. Ms. P. told Ms. K.P. that he had cut her arm out of anger and that she had gone to the Emergency Room. On March 12, 2018, Ms. P. was a "walk-in" at Ms. K.P.'s office and told her she was staying with a friend, as she had been kicked out of her housing arrangement. Ms. K.P. discussed emergency housing options with Ms. P., although Ms. P. did not take her up on her suggestions. On March 16, 2018, Ms. P. appeared for her appointment and told Ms. K.P. about an incident with her boyfriend, in which she had assaulted him. On April 20, 2018, Ms. P. told Ms. K.P. that she had moved in her with boyfriend and was babysitting for his children in exchange for staying there. On June 26, 2018, Ms. P. told Ms. K.P. that she had moved in with her husband for one week and then moved in with her boyfriend. At her next appointment on July 17, 2018, Ms. P. felt depressed but did not disclose where she was living.
Ms. K.P. testified that Mr. P. attended Ms. P.'s appointment along with her on August 7, 2018. Mr. P. dominated the conversation and told Ms. K.P. how CPS was mismanaging the case. He further advised Ms. P. not to attend her anger management counseling that day. Ms. P. did not attend counseling with Ms. K.P. again until September 26, 2018, when she stormed out of her office. On December 12, 2018, Ms. P. appeared for counseling with her mother-in-law and a live rabbit. At that time, Ms. K.P. reviewed Ms. P.'s treatment plan and goals with her and discussed Dialectical Behavior Therapy with her. Ms. K.P. testified that Ms. P. had moments of clarity during her treatment, but other times, truly struggled to manage her anger and to think things through before she acted out of anger. She testified that Ms. P. requested a new therapist, which she received in the summer of 2019. During cross-examination, Ms. K.P. found that Ms. P. had made little to no progress in finding ways to control her anger. Mr. P. was a trigger for Ms. P.'s anger and a source of stress for her. Ms. P. additionally admitted to Ms. K.P. that she used Spike and marijuana at one point during 2018, and resided with individuals who were using heroin. The Court finds Ms. K.P.'s testimony to be very believable and reliable.
On February 26, 2020, Ms. C.B. testified as the Deputy County Attorney's final witness. Ms. B. is a licensed social worker at N-S, an organization that works with sexual offenders. She was worked for N-S for the last nine years. Ms. B. provided services to both Ms. P. and Mr. P. Ms. P. was involved with Ms. B. from the end of 2018 through the present and met with her weekly. Ms. B. found Ms. P. to be forthcoming, honest and sincere. Ms. P. was involved in the Steps to Protect program, which is designed to help individuals understand what sexual abuse is and provide children with a nurturing environment. Ms. B. worked with Ms. P. on understanding indicators on how children may be abused. She testified that Ms. P. should not be alone with the children for any length of time. Mr. P.'s presence would not alleviate her concerns about Ms. P. being alone with the children.
Ms. B. also provided treatment to Mr. P. She began working with him in October or November of 2017. According to Ms. B., Mr. P. had diagnoses for depression and bipolar disorder. Ms. B. completed an evaluation of Mr. P. and determined that he was a low-risk to sexually re-offend. Upon cross-examination from the Attorney for the Child, however, Ms. B. acknowledged that Mr. P. had provided her with his history of sexual offenses, that she had not been aware of some of the information that the AFC questioned her about, including that Mr. P. had sexually abused a child between the ages of five and eight and that he had inflicted injuries to his penis during his period of incarceration. Ms. B. testified that her opinion regarding Mr. P.'s risk to sexually re-offend would "collapse" if she did not know his full history. Mr. P. was also enrolled in the Steps to Protect program.
Ms. B. testified regarding a history of domestic violence between the parents, which both of the Respondents told her about. She stated that she would be concerned about children in Mr. P.'s care if he was unable to regulate his emotions. She additionally testified that the Steps to Protect program is a curriculum, but that the participants need to internalize the information. According to Ms. B., Mr. P. was often agitated over being treated in a manner he perceived to be unfair, specifically surrounding visitation with his children, DCFS, the supervision of the visits and Ms. P.'s family.Perhaps most importantly to this Court, Ms. B. testified that Mr. P. did not feel he was responsible for the placement of the children. Ms. B. additionally testified that she advised Ms. G. that the Respondents had made "little progress" during the time period alleged in the TPR petition.The Court finds Ms. B. to be a very professional, sincere and earnest witness. At the conclusion of Ms. B.'s testimony, the County Attorney rested.
Ms. B. P., the mother of the children, testified on her own behalf on February 26, 2020, February 27, 2020, March 13, 2020, September 8, 2020 and September 9, 2020. She testified that she resides with her husband, who is one of her strongest supports. Ms. P. stopped attending anger management counseling because it was "always the same stuff." According to Ms. P., Ms. A. was attempting to get between her and her husband by encouraging her to date R.B.. Ms. P. testified that she has a full stay away order of protection against Mr. Brown.
Ms. P. then testified concerning her visitation at HFC. She provided numerous excuses as to why she missed visits, including that she was ill, she overslept, she had court in Watertown, her shoulder hurt, it was the anniversary of her father's death, and other excuses. According to Ms. P., Ms. K.P. also wanted her to divorce Mr. P. and pressured her to continue to date Mr. Brown, despite the domestic violence concerns. When she advised Ms. G. of the domestic violence in the relationship, Ms. G. did not do anything to help her. Ms. P. testified that she stopped attending counseling with Ms. K.P. because she did not trust her, she would not listen to Ms. P. and wanted her to divorce Mr. P..
Ms. P. additionally testified that the foster parents (her sister and her sister's husband) have allowed the children to have contact with numerous people that Ms. P. finds objectionable based upon her past history with them. Ms. P.'s testimony was punctuated with blame for almost every person involved in this case, including Ms. G., Dr. L., Ms. A., Ms. K.P. and the foster parents. Her testimony demonstrated a pattern of not accepting responsibility and blaming others for the lack of reunification with her children.
Mr. R.S., LMSW, testified on February 27, 2020 as Mr. P.'s witness. He is a social worker at the H. Psychiatric Center, where he has worked since 2000. Mr. S. runs a "Staying Safe" group for sex offenders and provided treatment to Mr. P. from 2010 through the end of 2018. According to Mr. S., Mr. P. has a primary diagnosis of Post Traumatic Stress Disorder (PTSD) with a secondary diagnosis of Bi-Polar Disorder and Pedophilliac Disorder. His goals for treatment were to focus and regulate his emotions. Mr. S. testified that Mr. P.'s main stressors were custody and marital issues. Mr. P. discussed domestic violence between him and Ms. P., alleging that Ms. P. assaulted him and complained about the visitation supervisor.
Upon cross-examination from the Attorney for the Child, Mr. S. agreed that the main source of his information was from Mr. P. himself. He never spoke with Dr. N.L. or with Dr. H. In fact, Mr. P. refused to sign a release for Mr. S. to obtain Dr. H.'s report. Mr. S. would only know if Mr. P. sexually offended against a child if Mr. P. self-reported to him, or there was an arrest. Mr. S. mainly worked with Mr. P. on avoiding volatile relationships and triggers. According to Mr. S., Mr. P.'s number one trigger was feeling disrespected. Mr. P. did report to Mr. S. that he needed to see a forensic psychologist. The Court finds Mr. S.'s testimony to be credible and reliable, but of limited value in this proceeding as Ms. S. was unable to review Dr. H.'s report, Mr. P. acknowledged that he was required to engage in counseling with a PhD level therapist, and Mr. P. was the main source of Mr. S's information.
On March 13, 2020, Ms. P. resumed her testimony. She continued to testify about alleged acts of wrongdoing on the part of the foster parents, including allowing inappropriate individuals around the children. Ms. P. testified that she took classes at V.H. in 2018, but was unsure what she learned. She attended the Service Plan Reviews every six months and testified that she mentioned the concerns about her children but does not recall the response. She testified that she did not want Ms. K.P. as a therapist because she did not trust her, but did not receive a new counselor. Ms. P. denied that she was discharged from HFC due to missed visits, and alleged that it was the visitation worker that canceled on her and that her "frozen shoulder" condition prevented her from attending other visits. Upon cross-examination from the AFC, Ms. P. admitted that her shoulder condition did not prevent her from walking or attending her mental health treatment, and that she additionally was provided with bus passes to get to HFC for her visits. Ms. P. testified that she had bit her thumbnail and that her thumb was infected at this time. Ms. P. denied that she had ever received any letters from the DCFS caseworker Ms. J. G.
Ms. P. testified that she has stayed in a variety of places, including the Rescue Mission, her sister J.D.'s home, and with Mr. R.B.. She testified that she initially filed a family offense petition against Mr. P. in March of 2017 after pressure from the foster parents. She subsequently withdrew the petition. In February 2017, Ms. P. moved back from Texas, then lived in Mexico, NY for awhile. Ms. P. was granted another order of protection against Mr. P. in February of 2018 after she called the police. Ms. P. repeatedly testified that she was not a victim. She admitted that R.B. gave her a black eye, but testified that she went to V.H. for counseling after she kicked Mr. P. and he kicked her in the stomach in retaliation. Ms. P. testified that Mr. P. kicker her in self-defense, and therefore, she was not a victim. She stated that Mr. P. "never laid a hand" on her. Ms. P. testified that she was sick of people using Mr. P.'s crime against him. During cross examination from the AFC, Ms. P. admitted that she lied in her family offense petitions. The Court finds that Ms. P.'s testimony concerning domestic violence very inconsistent and often defensive and argumentative.
Ms. P. was scheduled to resume her testimony on March 17, 2020, but was not able to do so until September 8, 2020, due to the COVID-19 pandemic. On that date, both Respondents appeared in person in the courtroom with their counsel and the Court, while the Deputy County Attorney, Attorney for the Child, DCFS caseworker and counsel for the foster parents appeared via Skype for Business. Ms. P. reiterated her prior testimony that she did not miss visits at HFC, alleging that her worker canceled some of the visits and she canceled some due to her shoulder injury and her thumb injury.Ms. P. denied that she had received Ms. G.'s letters, and testified that Ms. G. was aware that she was living in Nedrow, NY with her sister for three months and later with R.B. for six months.
Ms. P. testified that Ms. C., her sister and a foster parent of the children, stopped visits because Ms. P. was communicating with other family members, and that Ms. G. subsequently set up visits at Family Place. Ms. P. testified that she was not informed as to the health of her children and not provided with updates or notice of their medical appointments. Ms. P. testified that she was only notified of a few of the Service Plan Reviews out of eighteen.
According to Ms. P., Ms. G. did not assist her in dealing with domestic violence with Mr. R.B.. Ms. P. testified that she completed the domestic violence program and that she was the perpetrator of domestic violence in her relationship with Mr. P. Ms. P. testified that she learned in domestic violence classes that the female was always the victim, even if the aggressor was female and that the program she was in focused on her being the victim. She repeated that Mr. R.B. was abusive, but Mr. P. never was. The Court took judicial notice of the fact that Mr. P. filed a family offense petition against Ms. P. in 2018, which Ms. P. later consented to without admission.
Ms. P. additionally testified to a litany of issues she had with the foster parents, including that there were bruises on the children, they were having the children call them Mom and Dad and they had given the children different first names. Ms. P. stated that DCFS did not offer any services to her and that she finished domestic violence classes on her own. The Court notes that Ms. P. testified that she did not want the caseworker to know her whereabouts as they would tell the foster parents, who could call the police on her saying she was trying to kill herself.
Mr. P. began his testimony on September 8, 2020. He testified that he was engaged in a program to prevent sexual offending that included a safety plan. He is a registered sex offender due to a sexual offense from 2004, for which he was incarcerated for four years and spent two additional years on parole. He testified that the safety plan is a "safeguard" for him and that he meets weekly with Mr. S.. Mr. P. stated that he twice engaged in a sex offender program while incarcerated, once before a violation of parole terms and one time after the violation. In mid-2017, he started a sex offender program with Ms. B., but was advised that he did not meet the criteria. He did engage in the Steps to Protect class, a program designed to protect children from sexual abuse, and is still involved in it. He completed parenting classes, which he signed up for own his own. Mr. P. testified that pursuant to an order from the Hon. E.R. in J.C. Family Court, he is now able to communicate with his daughters O. (14 years old) and C. (18 years old) in a therapeutic setting.
Mr. P. testified that he completed an evaluation by Dr. H., but did not a sign a release prior to the evaluation for either his attorney or the caseworker. He eventually had a second evaluation. Mr. P. testified that although he completed services in December of 2018, he never engaged in treatment with a PhD level therapist. Mr. P. testified that he attended all of the Service Plan Reviews and chooses to walk to his services, even if the caseworker offers transportation. He additionally testified that the County canceled some of his visits and he only missed one, and that he also missed four visits when the foster parents were on vacation and was denied make-up time. During the visits, the children refer to themselves as "N." instead of S. and "H." instead of W.
Mr. P. resumed his testimony on September 9, 2020 after Ms. D. W. was taken as a witness out of order. Mr. P. testified that he never disrobed the children during visits except when child W. urinated during transport. He testified that he requested that his mother and his sister be approved to supervise his visits. While his mother was not approved as a supervisor, his sister supervised one visit on Father's Day. Despite asking the caseworker many times for his sister to supervise, his request was not acknowledged.
Mr. P. testified concerning a number of bruises that he saw on his children and that Ms. P. had called the police. Mr. P. said he had made more than ten claims that his children were being abused and neglected and took photographs of bruises on the children. Despite his complaints to the parent aide, the police, the transporter, the caseworker multiple times, Ms. B., and "a guy downtown", there was never any arrest or a "founded" Child Protective report. He testified that he has been engaged in mental health treatment with Mr. S. since 2009 and thinks highly of him. According to Mr. P., he did not engage in sex offender treatment because he was a low risk to re-offend, thus, he engaged in the Steps to Protect program. Mr. P. testified that he is not afraid of Ms. P. and that he filed a family offense petition against Ms. P. after she hit him with a telephone charger and kicked him. Despite that, he agreed that he would leave his children alone with Ms. P.
Mr. P. then testified about the evaluation conducted by Dr. H.. Since 2015, the caseworker has requested that he complete an evaluation by a PhD level therapist. After he received a copy of Dr. H.'s evaluation, he told Dr. H.'s office not to release the report. Mr. P. testified that he did not trust his attorney.
Mr. P. discussed his relationship with his children in J.C., stating that he had started therapeutic visits with one, as she is a stranger to him. Upon cross-examination from the Attorney for the Child, he stated that the reason he only had therapeutic visits with those children because he had never met O. and did not accept responsibility for his past sexual abuse of those children. He testified that he now accepted some responsibility. Mr. P. then testified that Mr. S. sent him to Dr. K. for an evaluation, which recommended a full forensic evaluation. According to Mr. P., he followed his recommendation and completed the forensic evaluation. The Court finds that Mr. P. was generally credible, but that his explanation for not signing a release for Dr. H.'s report and an alleged conspiracy against him was not credible. The Court additionally finds Mr. P. to be a generally calm witness as to demeanor but that he became extremely defensive and argumentative upon cross-examination from the AFC.
Ms. D.W. testified on September 9, 2020 as Ms. P.'s witness. She has been the coordinator for the V.H. Alternatives program for the past eight years. Ms. W. testified that Ms. P. was engaged in the Steps program which was held for an hour and a half per week for fifteen weeks and that Ms. P. successfully completed the program. Ms. W. stated that Ms. P. told her that she was a victim of domestic violence and her husband was the perpetrator. The Court finds Ms. W. to be a very credible and reliable witness.
Legal Analysis
In a proceeding to terminate parental rights, the "threshold inquiry" is whether the agency has made diligent efforts to reunify the parents with their children (Matter of Guardianship of Star Leslie W., 63 NY2d 136 [1984]). Diligent efforts include "reasonable attempts at providing counseling, scheduling regular visitation with the children, providing services to the parent to overcome problems that prevent the discharge of the children into his or her care and informing the parent of the children's progress" (Matter of Christian C.-B., 148 AD3d 1775 [4th Dept 2017]). The Petitioner is "not required, however, to guarantee that the parent succeed in overcoming his or her predicaments, but rather, the parent must assume a measure of initiative and responsibility" (Matter of Whytnei B., 77 AD3d 1340 [4th Dept 2010]).
In this case, Ms. G. testified that she discussed the service plan with the Respondents on numerous occasions, both in person and in monthly letters, and made referrals for services for both Respondents, including mental health counseling, anger management services, domestic violence services, sex offender counseling and clinical visitation. Ms. G. additionally provided bus passes to the Respondents and kept them apprised, via monthly letters, of their children's progress. With respect to Ms. P., Ms. G. initially made a referral to Family Place for clinical visitation, then supervised visits herself, and then made a new referral for clinical visits through HFC. Ms. P. was additionally referred to the Steps to Protect program through NuStep, a program designed to teach parents how to protect children from sexual abuse.
For Mr. P., Ms. G. arranged for a psychological evaluation from Dr. H., which recommended therapy with a PhD level therapist. Ms. G., noting Dr. K's recommendation for a full forensic evaluation, provided Mr. P. with the names of two potential providers to complete the evaluation, but Mr. P. wanted to schedule the evaluation himself. When he did not do so, Ms. G. scheduled an appointment with Dr. N.L., which Mr. P. did not attend.
Ms. P. testified that she never received any letters from Ms. G. and that she was not provided with referrals. The Court had the opportunity to observe all of the witnesses and evaluate their testimony, character and sincerity (Matter of Noel Sean CJ Ivan W., 179 AD3d 1078 [2nd Dept 2020]). The Court finds Ms. G.'s testimony that she sent monthly letters to the Respondents to be credible on this issue (See, e.g., In Re Toshea C.J., 62 AD3d 587 [1st Dept 2009]). The Court notes Ms. P.'s testimony that she lived at various addresses and that she at times refused to give her address to Ms. G.. The Court finds that the Petitioner established, by clear and convincing evidence, that it made diligent efforts to "encourage and strengthen" the parents' relationship with the children (Matter of Landon U., 132 AD3d 1081 [3rd Dept 2015]). The diligent efforts were "appropriately tailored" to the Respondents' particular circumstances (Matter of Aniya L., 124 AD3d 1001 [3rd Dept 2015]).
Despite these diligent efforts, the Court finds that both parents failed to plan for the children's future (Matter of Janette G., 181 AD3d 1308 [4th Dept 2020]). The Court can only find permanent neglect "after it is established that the parent has failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the children although physically and financially able to do so" (Matter of Cheyenne C., 185 AD3d 1517 [4th Dept 2020]). The requirement that parents plan for the future of their children "contemplates that the parent shall take such steps as are necessary to provide a home that is adequate and stable, under the financial circumstances existing, within a reasonable period of time. Good faith alone is not enough: the plan must be realistic and feasible" (Matter of Elijah NN, 20 AD3d 728 [3rd Dept 2005]). Not correcting the conditions that led to the removal of the children "is interpreted as the failure to plan for the children's future" (Matter of Tailer Q., 86 AD3d 673 [3rd Dept 2011]).
In this case, Ms. P. inadequately planned for the children's future by not meaningfully engaging in services. Ms. G. and Dr. L. both testified that Ms. P. missed numerous visits at HFC. The Court finds Ms. P.'s various explanations for her missed visits, including an injury from biting her thumbnail, to be incredible. Dr. L. testified that Ms. P. did not accomplish the goals established for her at HFC. Ms. A. also testified that Ms. P. did not obtain her goals in counseling at H.. According to the testimony of Ms. K.P., Ms. P. made little to no progress in controlling her anger. Although Ms. B. found Ms. P. to be honest, forthcoming and sincere in the Steps to Protect program, she opined that Ms. P. should not be alone with the children for any length of time.
While Ms. P. may have participated in the required services, she "did not successfully address or gain insight into the programs that led to the removal of the [children] and continued to prevent the [children's] safe return" (Matter of Soraya S., 158 AD3d 1305 [4th Dept 2018]). This is especially true for the issue of domestic violence. The Court credits the testimony of Ms. K.P. and Ms. W. that Ms. P. told them that she had been abused by Mr. P.. Despite this, and despite completing domestic violence services, Ms. P. could not recall what she had learned and emphatically told this Court that she was not a victim and that she had been the perpetrator of the domestic violence. Clearly, although Ms. P. took advantage of mental health and domestic violence services, she "inconsistently applied the knowledge and benefits [she] obtained from the services provided" (Matter of Joshua TT, 140 AD3d 1763 [4th Dept 2016]). She continued to involve herself in an abusive and volatile relationships, both with her husband and with Mr. R.B. (See, Matter of Jayden J., 100 AD3d 1207 [3rd Dept 2012]).
The Court additionally finds that both Respondents failed to adequately plan for the children's future by not accepting responsibility for the concerns that led to the children's removal (See, Matter of Neal TT., 97 AD3d 869 [3rd Dept 2012]). Both parents repeatedly blamed others for their issues, especially the foster parents. Both Ms. P. and Mr. P. testified extensively about the foster parents, alleging bruising on the children, despite repeated unfounded investigations by child protective services, and other alleged misdeeds. It appears from the evidence in the record that both parents were focused on the actions of the foster parents rather than addressing the issues that led to the placement of their children. During her testimony, Ms. P. blamed the caseworker, foster parents, her counselor and other various service providers for every allegation levied against her. The Respondents " took no effective steps to correct the conditions leading to removal or advance a realistic, feasible plan. While continually finding fault with or no need for various programs and personnel, the [R]espondents gained no insight into their own behavior which had been so...damaging to the children and required their removal" (Matter of Nathaniel T., 67 NY2d 838 [1986]).
Mr. P., while acknowledging a sexual offense against a child from 2004, took no responsibility for a lack of any prior relationship with his older daughters, or for the subject children being in foster care. He completed an evaluation with Dr. H., but then would not sign releases for the report or engage in therapy with a PhD level therapist, as required. By refusing to sign releases for Dr. H.'s evaluation and engage in counseling with a PhD level therapist, Mr. P. did not treat or address the issue that led to the children's placement (See, Matter of Emerald L.C., 101 AD3d 1679 [4th Dept 2012]). In Re Gloria Melanie S., 47 AD3d 438 [1st Dept 2008]).While Mr. P. may have completed the other services required, he has not meaningfully benefitted from the services (Matter of Dakota Y., 97 AD3d 858 [3rd Dept 2012]). The Court also notes that while both parents completed domestic violence services, they have both filed family offense petitions against each other and have what can best be described as a volatile relationship. Ultimately, the Respondents both "failed to accept responsibility for the events that led to the child's removal" (Matter of Jerikkoh W., 134 AD3d 1550 [4th Dept 2015]) and have permanently neglected the children.
NOW, therefore, it is hereby
ADJUDGED, that the County has established by clear and convincing evidence that diligent efforts were made to develop and encourage a meaningful relationship between the respondent-parents and the children during the relevant period of time as alleged in the petition; and it is further
ADJUDGED, that the County has demonstrated by clear and convincing evidence that, although able to do so, the respondent-mother and respondent-father failed to plan for the future of the children for a period of more than one year following the date that the children came into the care of the petitioner; and it is further
ADJUDGED, the Court finds by clear and convincing evidence that the children subject to this proceeding have been permanently neglected by the respondent-mother and respondent-father; and it is further
ORDERED, that a dispositional hearing with respect to the adjudication of permanent neglect shall commence on September 29, 2020 at 10:00 AM in Part I of Onondaga County Family Court. Dated: September 16, 2020 Syracuse, New York HON. MICHAEL L. HANUSZCZAK Family Court Judge