Opinion
N27985/14
05-10-2016
In the Matter of a Proceeding Under Article 10 of the Family Court Act, Kareema H., (DOB xx/xx/2014) Child Under Eighteen Years of Age Alleged to be Neglected by Jabreeah H., Respondent. In the Matter of a Proceeding for an Order of Custody pursuant to Article 6 of the Family Court Act, RENEE M., Petitioner, v. ACS-KINGS JABREEAH H., Respondent.
Anthony Dimango, Esq., attorney for the Administration for Children's Services Kreuza Ganoli, Esq., attorney for HeartShare St. Vincent's Services Ira Eras, Esq., Warren & Warren, P.C., attorney for the maternal great aunt Richard Miller, Esq., attorney for the foster parents Sophia Bernhard, Esq., Brooklyn Defender Services, attorney for the mother Grace Park, Esq., the Legal Aid Society, attorney for the child
Anthony Dimango, Esq., attorney for the Administration for Children's Services
Kreuza Ganoli, Esq., attorney for HeartShare St. Vincent's Services
Ira Eras, Esq., Warren & Warren, P.C., attorney for the maternal great aunt
Richard Miller, Esq., attorney for the foster parents
Sophia Bernhard, Esq., Brooklyn Defender Services, attorney for the mother
Grace Park, Esq., the Legal Aid Society, attorney for the child Lillian Wan, J.
In this child protective proceeding, the Court held a consolidated hearing on the permanency hearing, ACS's motion to modify the Order of Disposition, and the maternal great aunt's petition for custody. The issue before the Court is what is in the best interests of the subject child, eighteen-month old Kareema H. For the reasons set forth below, the Court determines that the best interests of the child will be served with a final order of custody to the maternal great aunt, Ms. Renee M.
The procedural history on this case is significant and worthy of mention. On October 27, 2014, ACS filed an Article 10 petition against the respondent mother, Jabreeah H., alleging that she neglected her newborn child, "Baby Girl H." (DOB xx/xx/14), in that she gave birth to the subject child and abruptly left the hospital without providing the hospital with any contact information or plan, and then failed to return. The petition further alleged that the mother regularly used marijuana and was not voluntarily and regularly participating in a substance abuse treatment program. The subject child was remanded to the care of ACS by the Hon. Alan Beckoff and placed in the non-kinship foster home of Andrea and Leon L. Personal service was ordered on the respondent and the matter was adjourned to October 30, 2014. The mother appeared on October 30th and was assigned counsel, however the mother indicated that she wished to place the child for adoption. The child still did not have a name at that point.
On the next court date, January 7, 2015, the mother failed to appear and the foster care agency, HeartShare St. Vincent's Services, reported that the respondent mother had not been in touch with the agency or the child despite multiple efforts to reach her by letters, phone, and home visits. The agency reported that a maternal great aunt from Oklahoma, Ms. Rene M., was interested in caring for the child and the agency was directed to explore the aunt and commence the Interstate Compact on the Placement of Children (ICPC) process. The Court held additional conferences on the case on February 24th and March 23rd and the mother failed to appear at both court dates. The foster care agency reported that the mother failed to make herself available to the agency and that the aunt remained intent on caring for Kareema. By that point, the ICPC was in progress. The matter was adjourned to June 22, 2015 for permanency hearing. By the June 22nd court date, the mother resumed contact with the agency and was visiting with the child sporadically and the permanency goal of return to parent was approved. The matter was subsequently transferred to this jurist and heard on August 10, 2015. The mother failed to appear on this date, and the agency reported to the Court that the mother had not visited in seven weeks. The matter was set down for inquest. On October 22, 2015, the foster parents both appeared as did the maternal great aunt, Ms. M. The mother failed to appear and the matter proceeded to inquest. After a hearing, the Court entered a finding of neglect against the respondent mother based on her leaving the hospital shortly after giving birth to the subject child with no plans or provisions for the child and marijuana use. The pleadings were also conformed to the proof pursuant to F.C.A. §1051(b) and the Court further found that the mother has failed to adequately plan for the subject child since the child's placement in foster care, in that she has failed to regularly visit the child or maintain contact with the foster care agency.
Given the respondent's default, the matter proceeded to disposition and permanency hearing. The Court was informed that the ICPC for the maternal great aunt in Oklahoma was approved. At that time the child had been residing in the pre-adoptive foster home of the foster parents for almost one year, and the attorney for the child was supporting adoption by the current foster parents and concerned that the subject child did not know her maternal great aunt. The subject child was placed with ACS and the Court directed that the child not be moved from her current foster care placement pending further order of the Court. The Court further modified the goal to adoption as there was no compelling reason to maintain the goal of reunification given the mother's failure to plan, and the agency was ordered to file a termination of parental rights proceeding as soon as a cause of action accrues. The agency was further directed to facilitate liberal visitation with the subject child's maternal great aunt, Ms. M. The matter was adjourned to January 13, 2016 for the next permanency hearing. On November 24, 2015, ACS filed an Order to Show Cause requesting an immediate Thanksgiving visit with the maternal great aunt. The Order to Show Cause was settled on consent of all parties and Ms. M. was permitted an unsupervised day visit on Thanksgiving Day, November 26, 2015 and additional overnight visitation in the home the maternal great-great aunt in Wappinger's Falls, New York.
On December 1, 2015, the maternal great aunt filed a motion seeking intervenor status. That motion was denied as intervenor status under F.C.A. §1035(f) is only available to the child's sibling, grandparent, aunt or uncle, not a great aunt. However, on consent of ACS and the attorney for the child, the maternal great aunt was permitted a visit with the child in Oklahoma from January 1, 2016-January 13, 2016. On December 22, 2015, the foster parents filed an Order to Show Cause requesting that the maternal great aunt only have supervised visitation with the child. The foster parents alleged that the child was doing poorly since the Thanksgiving visit with Ms. M. and that the child would suffer irreparable harm if permitted to go out of state with Ms. M., a stranger to the child. The attorney for the child withdrew her support for out of state or overnight visitation with Ms. M. until the Court determined what permanent plan is ultimately in the child's best interests. The Court modified its visitation order and allowed unsupervised day visits for that maternal great aunt from January 1, 2016 to January 13, 2016, directing that the child be returned to the foster home no later than 7:00pm. On December 31, 2016, ACS filed a motion seeking an order to vacate the Order of Disposition insofar as it directed that the child not be moved from her current foster care placement, and an order placing the subject child with her maternal great aunt, Ms. Renee M. The attorney for the child submitted an Affirmation in Opposition to the motion.
On January 13, 2016, the Court commenced a consolidated hearing on the motion to modify the dispositional order and the permanency hearing. A termination of parental rights petition had already been filed against the respondent mother by this court date and the respondent mother appeared in court on January 13th and was assigned counsel. Jurisdiction was deemed complete.
The maternal great aunt subsequently filed a custody petition and jurisdiction was deemed complete at the next court date on January 19, 2016. On January 19th, the respondent mother appeared and represented that she wanted the maternal great aunt to have custody of the child and consented to a finding of extraordinary circumstances on the record. All counsel consented to adopting the testimony taken at the January 13th court date for the purposes of a consolidated hearing on the custody docket and the Article 10 docket given the overlapping issues and the same best interests determination. The maternal great aunt renewed the application for overnight visitation indicating that she had temporarily relocated to New Jersey to be close to the child, and the Court authorized a seven-day visit for the maternal great aunt. The consolidated hearing was continued on February 1, 2016, February 4, 2016, March 14, 2016, March 29, 2916, and concluded on April 29, 2016. The Court permitted Ms. M. to take the subject child on two week visits in February, March and April. Ms. M. was additionally permitted liberal unsupervised day visits during the time that the child was back in the home of the foster parents.
The Court is considering all relevant and material evidence for the purposes of the permanency hearing and the motion and only the competent, material, and relevant evidence for the purposes of the custody determination. --------
The Court preliminarily notes that the maternal great aunt has standing to seek custody of the child as the respondent mother already consented to a finding of extraordinary circumstances on the record. Bennett v. Jeffreys, 40 NY2d 543 (1976).
Counsel for the maternal great aunt and ACS have made much issue over the foster parents' one month trip to Jamaica without the subject child, and whether they have had "continuous" care of the child for twelve months and should be given preference to adopt under SSL -b(3), however as this Court indicated at the outset of the hearing, this is not the central issue before the Court. It is the best interests of the child that is paramount. The Court notes that even if the agency was to give preference or first consideration to the foster parents, the final determination of the propriety of the adoption is "within the sole discretion of the Court." SSL -b(3). In the instant case, the agency does not even support adoption by the current foster parents.
The agency fully supports the maternal great aunt as a permanent resource for the child. Both the First Department, in Matter of Yary, 100 AD3d 200 (1st Dep't 2012) and the Fourth Department, in Matter of Savon, 26 AD3d 821 (4th Dep't 2006), have held that where an agency has been awarded care and custody of a child, the agency's refusal to consent to an adoption leaves the Court without authority to entertain the adoption petition. The agency's refusal to consent to the adoption can only be challenged through a fair hearing and a subsequent Article 78 proceeding. Id. The First Department further noted that even a foster parent's right to intervene in a proceeding would not eliminate the unwavering requirement of the agency's consent to the proposed adoption. Matter of Yary, 100 A.D. at 207. The Family Court cannot force the agency to approve of an adoption by a resource that they oppose. The agency case planner, Mr. Shavar Richardson, testified unequivocally that if the child was freed for adoption, the agency would not consent to adoption by the current foster parents. However, they would consent to the adoption of the child by the maternal great aunt, Ms. M. Therefore, the current foster parents would be precluded from proceeding with an adoption petition.
The Court of Appeals has long recognized that the relationship between a foster parent and a foster child is a "temporary relationship intended to provide the child with the benefits of a family setting, as an alternative to institutionalized care." See People ex rel. Ninesling v. Nassau County Dept. of Social Servs., 46 NY2d 382, 387 (1978). Furthermore, foster parents enter into this compensatory agreement with the express understanding that the placement is temporary and the agency retains the right to remove the child upon notice at any time. Id. This is not to say that the Court does not recognize that there are many instances where it is in the best interests of the child to be adopted by foster parents with whom the child has formed a significant bond. See Matter of Marie J., 307 AD2d 265 (2nd Dep't 2003); Matter of Olivia Susan C., 2 AD3d 441 (2nd Dep't 2003). The best interests determination is fact specific and must always be made on a case by case analysis.
The maternal great aunt introduced the foster care agency "foster parent agreement" as Petitioner's Exhibit 1. The foster mother, Ms. L., identified this document as the agreement that both she and her husband signed on October 12, 2010. This document contains sixteen numbered paragraphs that the foster parents who sign the document agree to. The very first paragraph states that the foster parent agrees "[t]o enable children received at board to mingle freely and on equal footing with other children in the household and in the community and to be accepted as members of the household and share in its pleasures and responsibilities." The foster parents have done this. They have treated and loved Kareema as a member of their family from the time she came into their care as a five-day old newborn. But they did sign a foster parent agreement knowing that their responsibility was to temporarily "foster" a child. According to the agreement, the foster parents were obligated to "cooperate with agency staff in the implementation or review of each child's service or discharge plan" (emphasis added). The agreement is also very clear on the rights of the foster parent in the event of the agency's proposed removal of the foster child from the home. Consistent with the appellate case law on this issue, the agreement states that the foster parent has the right to have an administrative review with an independent hearing officer. They have the right to appeal the administrative review decision by requesting a fair hearing from the New York State Department of Social Services.
The agency case planner, Mr. Richardson testified that a foster parent is trained to be a "temporary caretaker" of the child and that he had several conversations with the foster parents about this. Mr. Richardson further indicated that foster parents are required to produce the child for visitation and assist the agency in its planning obligations. Mr. Richardson stated that the foster parents refused to bring the subject child to the foster care agency the first week of January 2016 and he had to go pick the baby up from the foster home even though the foster mother was at home. On January 29, 2016, the foster parents were supposed to produce the child at the agency at 10:00am however, the foster parents failed to appear and did not respond to the agency's phone calls, sending an email after 12:00pm indicating that they took the child to the doctor's office.
The evidence established that the agency has been planning with the maternal great aunt since January 2015. The prior agency case planner started the ICPC investigation in February 2015 and the ICPC was approved in August 2015. The maternal great aunt lives in a three-bedroom house in Oklahoma with her husband of seventeen years, Darryl M., and her thirteen-year-old son, Darius M. Ms. M. credibly testified that she was employed by the United States Army for twenty years and that she was stationed in Germany at the time of the subject child's birth. Ms. M. first learned about the baby in December 2014 while she was still living in Germany. Ms. M. retired from the Army in January 2015. Ms. M. came to New York for the scheduled court date on January 7th and had a visit with Kareema at the foster home on or about January 6th. Ms. M. then returned to Oklahoma to be with her husband and son, who she had not seen regularly in two years while she was stationed in Germany. Ms. M. kept in regular contact with the foster care agency and maintained Skype contact with the subject child from January to March, but Skype eventually stopped because of Ms. M.'s difficulty in communicating with Ms. L. At only several months old, the subject child was too young to communicate and interact using Skype, and the majority of the interaction took place between Ms. M. and the foster mother. Both Mr. Richardson and Ms. M. testified that the foster father, Mr. L., stated to Ms. M. that he will "fight her" for the child, leading to an uncomfortable situation for Ms. M. When the Skype communication stopped, Ms. M. called the foster care agency on a weekly basis to check up on the status of Kareema and the status of the ICPC investigation. Once Ms. M.'s ICPC was approved in August 2015, the agency informed her to come to court on October 22, 2015, which she did. Ms. M. saw the child briefly in court in October 2015 and has had regular visitation with the child since that time. Mr. Richardson noted that the agency does not question Ms. M.'s dedication to this child and that Ms. M. has made many sacrifices for the child.
Mr. Richardson credibly testified that he has observed the interaction between Ms. M. and the subject child, that the child appears attached to Ms. M., and Ms. M. attends to the child's needs. All of her interaction with the subject child has been described as positive and the child "gravitates" to Ms. M. and seems comfortable and happy. Mr. Richardson further reported that when he reaches out to the child, the child clings to Ms. M. and if Ms. M. leaves the room, the child cries until she comes back. Mr. Richardson further testified that the agency's permanency goal for the child is adoption and that at the time Mr. Richardson was assigned the case in August 17, 2015, the mother had not visited since June 2015 and all her numbers were disconnected. Ms. M. was the only biological family member that maintained contact with the agency.
Since October 2015, Ms. M. has rearranged her life in order to bond with the subject child, and she has demonstrated an absolute commitment to Kareema. Ms. M. travelled back and forth from her own home in Oklahoma to New York City on multiple occasions, and has also been staying between the homes of her aunt in Wappinger's Falls, her mother in Niagara Falls, and her sister in Utica. Ms. M. has also stayed in a hotel in New Jersey so that she can be close to the subject child. Ms. M. had extended visitation with the child for one week during the Thanksgiving holiday in 2015, and then nine consecutive days of day visits from 10:00am to 5:00pm from January 4, 2016 to January 13, 2016. For those nine days, Ms. M. chose to stay with her aunt in Wappinger's Falls which is approximately a two and a half hour drive from New York City. To take advantage of the visits, Ms. M. left the house in Wappinger's Falls at 7:00am each day and then drove back from New York City through rush hour traffic getting home at approximately 9:00pm. On January 19, 2016, the Court allowed Ms. M. to have a week long overnight visit with the child. Since January 2016, parenting time with the child has been evenly split between the foster parents and the maternal great aunt. Ms. M. has had the child for two week visits in January, February, March, and April. In February and April, Ms. M. took Kareema back to her home in Oklahoma. Ms. M. testified that her relationship with Kareema continues to grow and they have a mother-daughter relationship.
The agency has had no safety concerns for the subject child while in the care of either the foster parents or the maternal great aunt. The foster mother has claimed that the subject child has returned from visits with the maternal great aunt sick and with marks and scratches on her body. Ms. M. explained that the child had an itch on her arm that the child scratched herself and that the child also sustained a cut on her leg when she opened a cabinet door on to her shin. Mr. Richardson testified that Kareema started walking in early November 2015. All children learning to walk explore and play and get scratches and marks. Mr. Richardson also testified that the scrape on the shin and the arm was not a big concern to him. While the subject child was having an extended week long overnight visit with Ms. M. in her aunt's home in Wappinger's Falls in January 2016, Mr. Richardson went to the home and observed the subject child in the care of Ms. M. Mr. Richardson reported no concerns. Additionally, no concerns were noted when the subject child was returned to the agency on January 28, 2016.
The foster mother further testified that she observed the child with a "chipped tooth" and a "scar" on her upper gum, but she did not inform the agency of this because she did not think the agency would take any action. The foster mother also testified that she asked the agency doctor to check the child's tooth but that the doctor told her that he did not see anything wrong with the child's tooth. The maternal great aunt testified that the child does not have a chipped tooth. The foster mother also claimed that the subject child was "unwell" or "sick" after she returned from visits with Ms. M. She testified that the child had a fever after the first extended visit at Thanksgiving and after the extended visit in January, however Ms. M. testified that the child was not sick, and the case planner testified that the child was medically cleared after all visits with the maternal great aunt.
The Court notes that the maternal great aunt credibly testified that she would not allow the mother to have unsupervised contact with the subject child. It is also significant that the maternal great aunt resides in Oklahoma and the maternal family believes that the respondent mother has relocated to Niagara Falls, New York. The mother has never been to visit the maternal great aunt's home in Oklahoma. The Court has no concerns that the aunt will use her good parental judgment in determining who has contact with the child going forward. A final order of custody to the maternal great aunt will also enable the subject child to grow up with Ms. M.'s thirteen-year-old son, Darius. Ms. M. introduced a letter from Darius to the Court as Petitioner's Exhibit 3. Darius wrote to the Court: "Thank you for giving me the pleasure of taking care of my little cousin. I'm hoping that she could stay with us for the rest of her life." Ms. M. testified that Darius has expressed that he wants a sister or brother to share his parents with and he wants Kareema to be in their lives forever. A final order of custody in favor of the maternal great aunt also means that Kareema will have the benefit of a large extended biological family, including a great grandmother, aunts, and cousins.
The cases cited by the attorney for the child in support of the contention that the bonds formed by a child in early development should be prioritized over placement with a relative are inapposite and can be distinguished from the instant facts before the Court. For example, in Matter of D.A.,18 Misc 3d 200 (Onondaga County Family Court 2007), the Family Court noted that the child had a very strong bond with the foster mother but that there was no evidence that the child had such a relationship with the relative. Furthermore, the Matter of D.A. Court noted that the relative did not avail herself of weekly visits and the relative did not exhibit the same determination to parent that the foster mother exhibited. Id. That is not the situation here. Similarly, in Matter of Matthew E., 41 AD3d 1240 (4th Dep't 2007), the child entered foster care because the grandfather refused to take custody of the child and had little contact with the child thereafter with the exception of one hour per week of supervised visitation. Here, Ms. M. did not even learn of the child's birth until several weeks after the child was placed in foster care. When Ms. M. returned from Germany, she retired from the U.S. Army in January, contacted the agency, and flew from Oklahoma to New York to meet the child and attend the court appearance. She has been unwavering in her commitment to the child ever since. Furthermore, in Matter of Amber B., 50 AD3d 1028 (2nd Dep't 2008), the Court found that the maternal grandmother had little to no relationship with the children prior to their entering foster care and had no relationship with them during the first three years of their foster care placement. The subject child here is only an eighteen month old infant and has already spent a significant portion of her young life forming a relationship with the maternal great aunt, who has put her own life on hold to obtain custody of the child.
It is clear to the Court that the foster parents love this child and have taken good care of the child. The child is fortunate that the foster parents were able to take this child into their home when the mother was not able to care for the child and love this child like their own biological child. However, the Court cannot ignore the fact that the child has a biological relative who has formed a bond with the child and is able to take equally good care of the child. See Matter of Evelyse Luz S., 62 AD3d 595 (1st Dep't 2009) (noting that although the child was bonded to the foster mother, who took good care of the child and her special needs, this does not undermine the fact that the child has biological relatives who are capable of caring for the child and have consistently expressed a desire that the child remain with the relative).
Approving the permanency goal of adoption by the maternal great aunt or even approving the goal of adoption by the foster parents pending the outcome of the termination of parental rights proceeding prolongs foster care for this child for an indefinite period of time. The Court does not see how continuing foster care serves the best interests of this child when there is a suitable relative, who the agency supports, ready and able to take final custody of the child today. The Second Department has long held that prolonging foster care is not in a child's best interests, particularly where a child has already spent all or most of her life in foster care. Matter of Angelica W., 80 AD3d 772 (2nd Dep't 2011); Matter of Tyria W., 41 AD3d 859 (2nd Dep't 2007); Matter of Paul Michael G., 36 AD3d 541 (1st Dep't 2007). The termination of parental rights proceeding could be a lengthy one, and the outcome is uncertain. A fact finding and dispositional hearing would still need to be held.
Based on all of the above, the Court finds that the best interests of the child will be served with a final order of sole legal and physical custody to the maternal great aunt, Renee M.As such, the motion seeking to modify the dispositional order is granted to the extent that the child is now in the legal custody of the maternal great aunt, Ms. M. The permanency goal is approved as permanent placement with a fit and willing relative, Ms. M. Based on such, foster care is hereby terminated and permanency is achieved. DATED: May 10, 2016 ____________________________________ Hon. Lillian Wan