Matter of Forestdale Inc. (Aryelle L.F.)
Annotate this CaseDecided on May 31, 2017
Family Court, Queens County
In the Matter of the Application of Forestdale Inc. For the Guardianship and Custody of Aryelle L.F. A Dependent Child Under the Age of 18 Years, Pursuant to the Provisions of Section 384-b of the Social Services Law of the State of New York.
B-08639/16
For the Agency, Forestdale, Inc., Melissa Wagshul, Esq.; For the Respondent Mother, Center for Family Representation by William Price, Esq.; Attorney for the Child, Legal Aid Society by Maria Chiu, Esq.
John M. Hunt, J.
This Court made a permanent neglect finding against Esperanza F. (hereinafter "Ms. F.") after a trial conducted in the Queens Family Court trial part during March, 2017. Thereafter, on May 11, 2017, this Court held a dispositional hearing at which only two witnesses testified. The dispositional issue before the Court is whether the parental rights of Ms. F., a twenty two year old single mother, should be terminated with respect to her two year old daughter, Aryelle L.F. (hereinafter "Aryelle"). Both the Foster Care Agency and the Attorney for the Child, Aryelle, seek to terminate Ms. F.'s parental rights. However, for the reasons set forth in this decision, the Court declines to do so, ordering instead a suspended judgment with conditions.
PROCEDURAL HISTORY
Ms. F. was twenty years old on November 14, 2014 when the Administration for Children's Services (hereinafter "ACS") filed a neglect petition against her with regards to her twelve day old infant, Aryelle, who was then living with her. The petition alleged a "derivative" [*2]form of neglect based upon a prior Nassau County neglect finding [FN1] entered against Ms. F. with respect to Aryelle's older half-sibling, Zynhana R.[FN2]
The simple allegation in the Queens petition against Ms. F. was that Aryelle was a neglected child as a result of Ms. F.'s failure to comply with the Nassau County dispositional order entered following the neglect findings in Zynhana's case. Although the new Queens petition did not accuse Ms. F. of harming Aryelle in any way, and notwithstanding the fact that Aryelle's father, Derek F., a.k.a. Derek B. (hereinafter "Mr. F."), was not charged at all as a respondent, a judge, no longer sitting in Family Court, sua sponte [FN3] ordered Ms. F.'s infant removed from her home and placed the child in non-kinship foster care. The child has remained there ever since. Sadly, as will be set forth in this unfortunate time line of events, the cure was worse than the disease.
Five months later, on April 23, 2015, by order to show case, ACS alleged that on April 15, 2015, Ms. F. appeared so late for a visit with her daughter that her visit was cancelled, at which point, Ms. F. "became verbally aggressive with agency staff and security had to be called. [She] forcibly removed the child from the non-respondent father's arms and began attacking [him] while she was holding the baby."[FN4] Without Ms. F. being present,[FN5] and hearing only ACS's side of the story, a second family court judge, no longer sitting, summarily suspended Ms. F.'s visits with her five month old daughter based upon that single incident.[FN6] Significantly, it was Ms. F. who called the police: no one was arrested, the child was unharmed, and ACS never sought to amend their petition to include this incident as evidence of neglect. Yet, Ms. F.'s visits to this day [*3]have never been reinstated.[FN7] Her absence from her child's life has now become the cornerstone for the Foster Care Agency's and the Attorney for the Child's steadfast position that Ms. F.'s parental rights should be terminated, and that Aryelle should be freed for adoption.
On July 15, 2015, upon inquest, a permanent neglect finding was entered against Ms. F. in Nassau with regards to her older child, Zynhana, and Ms. F.'s parental rights with respect to that child were terminated. On November 17, 2015, after trial before a third family court judge, a neglect finding was entered in a separate proceeding in Queens against Ms. F. with regards to her younger child, Aryelle. Thereafter, on November 30, 2015, that same Queens family court judge issued a dispositional order against Ms. F. with regards to Aryelle. Less than three weeks later, on December 17, 2015, the same Queens family court judge who suspended Ms. F.'s visits, ordered the Foster Care Agency to file a termination of parental rights (hereinafter "TPR") petition against Ms. F. since she was not planning [FN8] and was not engaged in services. On April 20, 2016, the Foster Care Agency filed a TPR petition against Ms. F. in Queens with regards to Aryelle.[FN9] Ms. F. had been told repeatedly by ACS, the Foster Care Agency, and the judge that if she engaged in services, her visits would be reinstated.
On November 21, 2016, Ms. F. challenged her suspended visitation;[FN10] her application was based upon her recent engagement in services and participation in a mental health evaluation.[FN11] In her papers, Ms. F. asserted that even her neglect dispositional order included a provision that she be permitted regularly scheduled visitation with Aryelle as soon as she engaged in services. On January 23, 2017, a fourth judge in Queens Family Court denied her application with leave to renew, this time because Ms. F. had "not yet substantially completed [some of her services]", a different and higher standard than what had been previously set forth for her. The ruling was also different from the outcome outlined by a recent court-ordered mental health evaluation by Doctor Tiffany Sylvestre, Ph.D. who suggested that so long as Ms. F. engaged in therapy, "the [*4]level of risk presented by Ms. F. to the subject child should be mediated."[FN12]
On February 21, 2017, pursuant to the Queens Family Court protocol, the TPR trial in the matter was assigned to this Court.[FN13] On March 1, 2017, Ms. F. renewed her application for visitation since she had completed additional programs and was further along in her counseling.[FN14] However, the Court could not consider Ms. F. application because she had appealed the Queens fact-finding and dispositional orders issued in connection with her neglect case. Moreover, a different family court judge had already issued an order on the visitation issue which controlled. Ms. F. also appealed that order, which denied her application for visitation. On March 2, 2017, after trial, the Court entered a permanent neglect finding against Ms. F. and adjourned the matter for a dispositional hearing. On March 22, 2017, the Appellate Division, Second Department, affirmed Ms. F.'s neglect fact-finding and dispositional orders. Thereafter, Ms. F. withdrew her appeal on the visitation issue. On April 12, 2017, the issue of Ms. F.'s visitation was referred to the Court to be decided in connection with the related TPR disposition.
EVIDENCE
During the dispositional phase of Ms. F.'s TPR trial, the Foster Care Agency's sole witness was Elizabeth Hodnett, one of their senior case planner supervisors, whom the Court qualified as an expert in psychology.[FN15] The Foster Care Agency asked the Court to take judicial notice of several court orders. Ms. F. testified on her own behalf. She admitted into evidence, letters regarding her services participation, certificates of services completion, and her mental health evaluation. The Court finds both Ms. Hodnett and Ms. F. to be credible witnesses.
Ms. Hodnett had little direct knowledge of the case. Since Ms. Hodnett was assigned to the case in December, 2016, much of her testimony was based upon the information within the Foster Care Agency's case record. Ms. Hodnett testified that Ms. F. had her visitation with Aryelle suspended, and had been inconsistent in attending her services. Ms. Hodnett described Ms. F. as the victim of domestic violence perpetrated against her by Aryelle's father, Mr. F..[FN16] She told the Court that she had concerns that Ms. F. had continued to remain in her domestic violence relationship with Mr. F. until a month prior to the hearing, that Ms. F. did not have [*5]consistent, appropriate housing,[FN17] and that she had just begun her mental health treatment. Ms. Hodnett conceded that Ms. F. had, by the time of the hearing, completed all of her services and her only outstanding requirement as far as the Foster Care Agency is concerned is that Ms. F. continue her individual counseling. Ms. Hodnett also conceded that Ms. F. had matured since the inception of the case, arrived to meetings with the Foster Care Agency in a timely fashion, and is much better at managing her anger.
Ms. Hodnett testified that Aryelle's foster mother takes good care of Aryelle. She opined that Aryelle has become bonded to her foster mother, who wants to adopt her, and with whom Aryelle has lived since she was less than a month old. Even though qualified as an expert in psychology, Ms. Hodnett was never asked for, nor did she render, an expert opinion about that bonding. Ms. Hodnett's conclusion about Aryelle's bonding to her foster mother was based upon Aryelle referring to her foster parent as her mother [FN18] and once running to her foster mother for comfort after falling down.[FN19] These scant first-hand impressions were gleaned from a one time, thirty minute "behavioral observation"[FN20] in January, 2017, which Ms. Hodnett conducted. Otherwise, she never saw Aryelle with her foster parent. Significantly, the Foster Care Agency never brought Aryelle's foster mother to testify and, therefore, the Court had no further details upon which to base any conclusion about the degree to which Ms. F.'s child has bonded to her foster parent.
In its analysis of the dispositional phase of Ms. F.'s TPR trial, the Court considered the Foster Care Agency's case record in evidence. The Court now summarizes Ms. F.'s testimony in conjunction with that case record: Ms. F.'s childhood was unstable, comprised of moving around from home to home. When she was seventeen years old, she gave birth to her first child Zynhana. She was young, without a support system, and without financial help from Zynhana's father. The Nassau County Department of Social Services brought a case against her for neglect in Nassau grounded in her alleged inability to provide Zynhana with adequate food, clothing, and shelter. Zynhana was removed from her and placed into non-kinship foster care. Due only to her non-compliance with services, Ms. F.'s visits with Zynhana were suspended in Nassau.
Ms. F. became involved in a relationship with Mr. F. which was riddled with domestic violence in which Mr. F. was the primary aggressor. During the course of their tumultuous relationship, Mr. F. hit Ms. F. in the head with a bottle, Mr. F. was arrested, and an order of protection was issued against him in Ms. F.'s favor. Meanwhile, Ms. F. became pregnant with his [*6]child. Carrying his child, she continued to live with him in violation of the order of protection. At this point, Ms. F. and Mr. F. were living in Queens County. Ms. F., now barely twenty years old, gave birth to Aryelle. After Aryelle was removed from her care in Queens, Ms. F. and Mr. F. began planning together towards reunification. After an incident during which Ms. F. became irate when she arrived late for an agency supervised visit and was told that she could not see Aryelle, her visits were suspended.
Ms. F. testified that she was "broke." Shortly thereafter, she was incarcerated for shoplifting from stores in the Green Acres Mall. Ms. F. also had no place stable to live as she and Mr. F. were living in and out of the shelter system. Her whereabouts were ever changing, and she was inconsistent with her visitation with Aryelle.
A TPR petition was filed in Nassau County against Ms. F. with regards to Zynhana after which her parental rights to Zynhana were terminated on July 15, 2015. She testified that she felt as though she had been taken advantage of by the court system because she was so young and did not really understand the process. Approximately a month later, on August 25, 2015, Ms. F. went for intake at Odyssey House.[FN21] After she completed intake, Ms. F. was sent to Lafayette House where she entered the program.[FN22] She left the program because she did not agree with the in-patient aspect of the program. Ms. F. then became engaged in out-patient services at Resolution Counseling Services. Her services ended when her insurance ceased. At that time, she told the Foster Care Agency that she had applied for food stamps and public assistance, and was working towards getting her insurance back through Medicaid. She also told the Foster Care Agency that she would re-engage in services as soon as her insurance had been reinstated. In January, 2016, she went for intake at Forestdale's Passport to Parenting program and began attending. In March, 2016, Ms. F. and Mr. F. got into a car accident in North Carolina so Ms. F. ended up staying in North Carolina for longer than she expected. She left a message for the case planner to request free programs as she had been unable to fix her insurance due to her out of state stay. Several weeks later, in April, 2016, Ms. F. went to Florida because her grandfather died. Ms. F. contacted the case worker again, and expressed interest in referrals to programs in Florida since she and Mr. F. were considering moving there.
Ms. F. ultimately returned to New York and enrolled in services. By the end of 2016, Ms. F. was engaged in the Strong Mothers program, had significantly engaged in anti-domestic violence counseling at Resolutions Counseling Services, had completed a parenting skills program, and had completed a mental health evaluation. She seeks visitation with her daughter, now two years old, before it is too late. She told the Court that if she was permitted to bond with her daughter, she would do everything right - she would properly care for Aryelle, get a job, stay in therapy, and whatever else it took to get her daughter back permanently.
Ms. F. testified that she is no longer in a relationship with Mr. F., which she recognizes is a domestic violence relationship because she is now aware of the signs. She told the Court that [*7]she did not prosecute Mr. F. for domestic violence because, at the time, she had nowhere to live, and he was the only person she had in her life on whom she depended. She further testified that she stayed with Mr. F. because she believed that he was going to help her get Aryelle back and they were going to raise a family together. She admitted that she was wrong because he controlled her and used her for benefits, and ultimately surrendered his parental rights to Aryelle.[FN23] Ms. F. told the Court that she feels like she wasted five years of her life with Mr. F.
Ms. F. testified that she has found an apartment in Saint Albans that is being prepared for her so that she can begin living there this month. She also testified that she is waiting for the health department to approve her to work in a job in which she will be caring for the elderly in their homes. She will also apply for food stamps if her salary is not enough to pay for food. She further testified that she intends to go to school to study art. Finally, she testified that if Mr. F. were to continue to contact her, she would seek an order of protection against him.
DISCUSSION
In a termination of parental rights proceeding, after a finding has been entered, the Court has three dispositional alternatives as follows: (1) the Court may dismiss the termination of parental rights petition; or, (2) the Court may enter a suspended judgment for up to one year; or, (3) the Court may terminate a parent's rights and commit the subject child's custody to the Commissioner of Social Services for the purposes of adoption. See NY Fam. Ct. Act §§ 631, 632, 633 (McKinney's 2017); see also Matter of Tiffany A., 242 AD2d 709, 712 (2d Dep't 1997). New York State Family Court Act § 631 dictates that the dispositional order "shall be made ... solely on the basis of the best interests of the child."[FN24] NY Fam. Ct. Act § 631 (McKinney's 2017) (emphasis added); see also Matter of Christiana M. N.-M., 101 AD3d 884, 884 (2d Dep't 2012); Matter of Jonathan B., 84 AD3d 1078, 1079 (2d Dep't 2011); Matter of Tatyana S.P., 67 AD3d 685, 685 (2d Dep't 2009); Matter of Tiffany A., 242 AD2d at 712.
Ms. F.'s testimony was honest and heartfelt. She is a young mother who, as a child, apparently never received any sound advice or guidance, living adrift in a sea of temporary residences. She was young, confused and receiving no help, financial or otherwise. She is now making strides to correct the past. The Court acknowledges that Ms. F. is not a model parent. However, it is this Court's position that this young mother was overwhelmed by, and disgruntled about, a system that was heavy-handed in its treatment of her. When Ms. F.'s Queens neglect case was first heard in court, Aryelle had been in her care for two weeks without incident. Nevertheless, a family court judge removed Aryelle from her care, sua sponte, not because Aryelle had been treated improperly but because Ms. F. had failed to comply with dispositional orders issued with respect to an older child in another county. Moreover, based upon a one time incident during an agency supervised visit, Ms. F.'s visits with Aryelle were suspended indefinitely without a hearing and without any legal determination that she had neglected her [*8]child.
For this Court, the difficulty in reuniting Ms. F. with her daughter began then - when her visitation was harshly and abruptly suspended without her being present to tell her side of the story.[FN25] At the time that her visitation was suspended, by her own admission, she was involved in a domestic violence relationship with Aryelle's father and felt that she had no place to go and no one to go to. Moreover, she told the Court that her parental rights to Zynhana were in the process of being terminated, and she felt despondent that she had been dragged into a process which she did not truly understand.
Ms. F. testified that she wants a second chance to become a part of her daughter's life now that she has benefitted from services. Within her testimony, she set forth a future plan towards reunification with her daughter, and told the Court that she intends to do what it takes to properly parent Aryelle.
After considering the testimonial and documentary evidence presented at trial as well as the parties' arguments, the Court finds that the Foster Care Agency did not prove that terminating Ms. F.'s rights are in Aryelle's best interests, and that Aryelle should be freed for adoption. The Court also finds that the Foster Care Agency did not prove that Aryelle is bonded to her foster mother such that her biological mother could not be reintegrated into her life. Aryelle is in the company of several caregivers at various times. The Foster Mother works full-time so Aryelle attends day care during work hours,[FN26] and the Foster Mother's mother and sister are at her home frequently.[FN27] Under these circumstances, Ms. F. should certainly be given an opportunity to bond with her biological daughter. In this regard, it is significant that Ms. F. visited with Aryelle for the first five months of her daughter's life, and Aryelle was recently exposed to her maternal family when the Foster Care Agency permitted Ms. F. to plan Aryelle's birthday party at which Aryelle's maternal relatives were present, but Ms. F. could not attend. The Court further finds that Ms. F. has established that she has made progress to overcome the specific problems which led to the removal of the her daughter.
Upon a permanent neglect finding, a dispositional order suspending judgment affords"'a brief grace period designed to prepare the parent to be reunited with the child, '" a second chance when it is in the child's best interests. Matter of Jesse D., 109 AD3d 990, 990-91 (2d Dep't 2013) (where incarcerated father received suspended judgment, twice issued incorrectly, remitted since three years elapsed since issuance of suspended judgment, more time than permitted by statute). It is the Court's view that it is in Aryelle's best interests for Ms. F. to receive a second chance to [*9]become a part of her biological daughter's life - to be given the opportunity to bond with, and parent, Aryelle. See Society for Seamen's Children ex rel. Juda J. v. Jennifer J., 209 AD2d 849 (2d Dep't 1994) (in termination of parental rights matter, finding that court should have suspended judgment since "Legislature's express desire [is] to return children to their natural parents whenever possible."). Aryelle, now two years and a half years old, is still at an age where she can easily form new relationships and there are services which can help Ms. F. re-establish Aryelle's connection to her. Therefore, to further the overriding goal of mother/child reunification, it is ordered that a suspended judgment is entered for one year under the following terms and conditions: (1) ACS shall facilitate Ms. F.' immediate enrollment in a program with Aryelle designed to re-establish their parent/child bond, such as the Attachment Behavioral Catchup program, a.k.a. ABC Therapy, as described by Ms. Hodnett in her testimony; (2) Ms. F.' previously suspended visitation shall be reinstated forthwith so that Ms. F. shall be entitled to a minimum of twice weekly supervised visitation with her daughter, Aryelle, to be expanded as the bonding process progresses; (3) Ms. F. shall be under ACS supervision for a period of one year; and, (4) Ms. F. shall continue in her individual counseling and comply with all reasonable recommendations that flow therefrom.
This constitutes the decision, opinion, and order of the Court.
Dated: May 31, 2017
Jamaica, New York
E N T E R:
/JMH/
_____________________________________
JOHN M. HUNT, JUDGE
FAMILY COURT - QUEENS COUNTY Footnotes
Footnote 1:On November 21, 2013, a year prior to the neglect filing regarding Aryelle in Queens, fact finding and dispositional orders were entered against Ms. F., then nineteen years of age, in Nassau County where Zynhana's case was being litigated. Ms. F. was placed under Nassau County Department of Social Services's supervision for one year. She was directed to complete a forensic evaluation, a parenting class, and an anger management class, and to comply with the terms and conditions of an order of protection.
Footnote 2:Ms. F. was seventeen years old when Zynhana was born.
Footnote 3:ACS had not used their emergency removal power prior to the court proceeding and, during Ms. F.'s arraignment, had not requested that the judge remove Aryelle from Ms. F.'s home.
Footnote 4: Order to Show Cause (04/21/15), Queens County Family Court Docket Number NN-21824-14; Aff. In Supp. (04/21/15), Queens County Family Court Docket Number NN-21824-14.
Footnote 5:According to the case record in evidence, on the date that Ms. F.'s visits were suspended, she was incarcerated on an unrelated charge in Nassau; she was released on June 2, 2015. No order to produce her in court was ever issued.
Footnote 6:The Court notes parenthetically that Ms. F.'s visits were suspended despite the fact that she was not present. No hearing into the facts was held. At the time that the order to show cause was first heard, the Attorney for the Child opposed suspension of the visits and Ms. F.'s attorney argued for therapeutic visitation in lieu of suspension.
Footnote 7:This Court was procedurally unable to review the suspension order until disposition.
Footnote 8:The suspension of Ms. F.'s visits was a court-ordered barrier to her planning.
Footnote 9:The Foster Care Agency also filed against Aryelle's putative father, Derek F., a.k.a. Derek B. Mr. F. was not a named respondent in the neglect petition even though ACS believed there to be domestic violence between him and Ms. F. in which he was the primary aggressor. In January, 2016, Mr. F. stopped visiting with Aryelle of his own volition. On March 2, 2017, Mr. F. settled his portion of the TPR against him by surrendering his parental rights to Aryelle on the condition that the child's foster mother adopt her.
Footnote 10:See Not. of Mot. (11/21/16), Queens County Family Court Docket Number NN-21824/14; see also Aff. (11/21/16), Queens County Family Court Docket Number NN-21824/14.
Footnote 11:Ms. F. was engaged in the Strong Mothers program, had significantly engaged in anti-domestic violence counseling at Resolutions Counseling Services, had completed a parenting skills program, and had completed a mental health evaluation.
Footnote 12:NYC Health & Hospitals Corp. Family Court Mental Health Services Clinical Report (12/21/16), Queens County Family Court Docket Number NN-21824/14.
Footnote 13:Under the Queens Family Court protocol, trial part judges are assigned to try cases wherein the parties announce readiness for trial in their assignment parts.
Footnote 14:See Not. of Mot. (03/01/16), Queens County Family Court Docket Number NN-21824/14; see also Aff. (03/01/16), Queens County Family Court Docket Number NN-21824/14.
Footnote 15:Ms. Hodnett testified that she has attained a bachelor's degree and a master's degree in psychology.
Footnote 16:See F. Tr. at 86-7 (05/11/17), Queens County Family Court Docket Number B-08639/16.
Footnote 17:Ms. Hodnett testified that the Foster Care Agency will only help parents apply for NYCHA housing if that is the only barrier to reunification.
Footnote 18:Sadly, the Foster Care Agency remained silent and permitted Aryelle to refer to her foster parent as her mother, even though her own biological mother's parental rights had not been terminated.
Footnote 19:The Court notes anecdotally that since Ms. F. was never permitted to bond with her daughter, Aryelle's need for comfort from her foster mother after falling down was perfectly understandable. Moreover, at the time that Aryelle fell, only her foster mother and Ms. Hodnett were present so it is natural that she would choose her caregiver to provide reassurance to her.
Footnote 20:F. Tr. at p. 14 (05/11/17), Queens County Family Court Docket Number B-08639/16.
Footnote 21:The Court finds the timing of Ms. F.'s entry into services to be significant, one month after her rights to Zynhana were terminated.
Footnote 22:Since Odyssey House required Ms. F. to enter the program with Aryelle, Odyssey House sent Ms. F. to Lafayette house where that was not a prerequisite to enrollment.
Footnote 23:Ms. F. testified that she knew her relationship was truly over with Mr. F. when he surrendered his parental rights to Aryelle because she knew then that he had no intention of being part of a family with her and Aryelle.
Footnote 24:"[T]here shall be no presumption that such interests will be promoted by any particular disposition."). See NY Fam. Ct. Act §§ 631 (McKinney's 2017)
Footnote 25:A mother has a constitutionally protected interest in a relationship with her child. In that context, in an Article 10 matter, when a child is removed from a parent, that parent has a right to reasonable and regularly scheduled visitation unless the child's life or health would be endangered. See NY Fam. Ct. Act § 1030(a) (McKinney's 2017). In those instances, however, the court may order supervised visitation if it is in the best interests of the child. See NY Fam. Ct. Act § 1030(c) (McKinney's 2017). A child protective visitation order may be modified where good cause is shown provided that all parties are properly served and given an opportunity to be heard. See id. (emphasis added).
Footnote 26:See F. Tr. at 6 (05/11/17), Queens County Family Court Docket Number B-08639/16.
Footnote 27:See F. Tr. at 5 (05/11/17), Queens County Family Court Docket Number B-08639/16.
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