Matter of A.B. v D.W.

[*1] Matter of A.B. v D.W. 2007 NY Slip Op 51207(U) [16 Misc 3d 1101(A)] Decided on June 8, 2007 Family Court, Monroe County Ruhlmann, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 8, 2007
Family Court, Monroe County

In the Matter of a Proceeding Under Article 6 of the Family Court Act A.B., Petitioner,

against

D.W., Monroe County Department of Health and Human Services, Department of Social Services, Respondents.



V-10989-06



A.B., pro se, Petitioner

Monroe County Law Department, by Peter A. Essley, Esq., for Respondent-Petitioner, Monroe County Department of Social Services, Department of Social Services

Conflict Defender's Office, by Kerri E. Machado, Esq., for Respondent-Respondent D.W.

Mary Beth Feindt, Esq., Law Guardian

Dandrea L. Ruhlmann, J.

After holding a joint custody and permanency hearing,[FN1] the Court must decide both if it should amend a Family Court Act (FCA) Article 10 permanency goal to "permanent placement with a fit and willing relative" and if a non-parent relative petitioner in a FCA Article 6 custody proceeding has proven extraordinary circumstances. By petition filed August 24, 2006, maternal great aunt A.B. (Petitioner-[*2][*3]Aunt) filed a petition for custody of A.C. (dob: //05). A.C. is currently placed in Petitioner-Aunt's care under an Order Adjourning in Contemplation of Dismissal (ACD) a neglect petition filed by Monroe County Department of Human Services, Department of Social Services (Department) against A.C.'s biological mother D.W. (Respondent-Mother) ("Order of Disposition" entered August 17, 2006, Robert B. Wiggins, J.).[FN2]

The custody proceeding was scheduled for trial at the same time as the FCA Article 10 permanency hearing wherein the Department sought to change the goal to "permanent placement with a fit and willing relative." The Court approves the goal of "permanent placement with a fit and willing relative" but denies the custody petition. A.C. shall remain placed with Petitioner-Aunt under the supervision of the Department. Within 30 days of service of this Decision and Order, the Department shall seek formal extension of the ACD order or shall file a violation petition, as it deems appropriate. Respondent-Mother shall continue to receive services of the Department.

Statement of Facts:

By petition filed January 31, 2006, the Department alleged that Respondent-Mother neglected A.C.. A.C. was removed from Respondent-Mother's home and placed with Petitioner-Aunt in February 2006 under supervision of the Department. By order entered August 16, 2006, the parties consented to an ACD and the Court approved conditions including, inter alia, A.C.'s continued placement with Petitioner-Aunt, visitation between Respondent-Mother and A.C., and that Respondent-Mother receive parenting, substance abuse and mental health counseling. A first permanency hearing was held and the parties consented to an order entered December 11, 2006 continuing the goal of "return to parent."

Petitioner-Aunt then filed the FCA Article 6 custody petition. Both the Department and Law Guardian support the petition. The most recent Permanency Report dated March 19, 2007 proposed a new goal of "permanent placement with a fit and willing relative" (i.e. Petitioner-Aunt) although the Department never filed a petition alleging that Respondent-Mother violated the ACD order. Respondent-Mother both moved to dismiss the custody petition and objects to the proposed change in the permanency goal. This Court denied the motion to dismiss and determined that the custody hearing should be held simultaneously with the permanency hearing (Matter of A.B. v D.W., __ Misc 3d __). The combined hearing was held on March 30, 2007 and May 1, 2007. Respondent-Mother did not appear and, although present, her counsel chose not to participate in the hearing. Two witnesses testified including Department Caseworker Contessa Noye and Petitioner-Aunt.

A.Testimony of Ms. Noye [*4][*5]

Ms. Noye testified that she began working on this case in April 2006. She testified that she has been working with Respondent-Mother towards the goal of returning A.C. but that Respondent-Mother first must (1) complete a substance abuse program; (2) have a mental health evaluation and follow treatment recommendations; (3) maintain stable housing; (4) complete a parenting class; and (5) visit consistently with A.C..

(1) Substance abuse:

Ms. Noye testified that although Respondent-Mother completed a substance abuse evaluation, she did not complete a treatment program. Respondent-Mother attended the Restart Program but left when she was incarcerated for approximately twenty days in January 2007. Respondent-Mother admitted to Ms. Noye that she chose to serve prison time rather than probation because that would allow her more time to engage in the services needed for A.C.'s return.

(2) Mental health:

Ms. Noye testified that she believes Respondent-Mother's biggest issue is her mental health. She observed that Respondent-Mother was often both unkempt in appearance and sad. At a home visit in April 2006, Respondent-Mother cried periodically and stared out of the window. Ms. Noye testified that Respondent-Mother failed to receive a mental health evaluation although she was referred to the Unity Mental Health Program. Each time Respondent-Mother visits with A.C. Ms. Noye advises her about the need for a mental health evaluation. Ms. Noye remembers specifically speaking with Respondent-Mother about mental health treatment both in February and March of this year.

(3) Housing:

Ms. Noye testified that Respondent-Mother has not had an apartment since April 2006. Respondent-Mother lived at Alternatives for Battered Women (ABW) from approximately early November until the end of December 2006. Respondent-Mother admitted to Ms. Noye that she went to ABW because her boyfriend hit her and demanded that she move out. Ms. Noye testified that Respondent-Mother is currently homeless and recently applied for emergency public housing.

(4) Parenting:

Ms. Noye testified that Respondent-Mother completed a parenting program sometime around May 2006.

(5) Visitation:

Ms. Noye testified that Respondent-Mother does not visit consistently with A.C.. Respondent-Mother's last visit with A.C. was on or about March 7, 2007. Before that Respondent-Mother visited with A.C. only one time in both January and Febraury 2007. Ms. Noye testified that Respondent-Mother's visits were also inconsistent in 2006 and Respondent-Mother would both arrive late for visits and leave early.

Ms. Noye testified that prior to July 2006, Respondent-Mother could visit with A.C. anytime at Petitioner-Aunt's apartment and was offered overnights. In July 2006, visitation was changed to supervised only at the Department with Ms. Noye acting as the supervisor. She testified that she supervised approximately ten (10) visits and that since April 2006 approximately fifteen (15) visits took place. At the visits Ms. Noye supervised, she observed that A.C. acted shy, covered her eyes and did not engage [*6][*7]immediately with Respondent-Mother - but by the end of the visits A.C. and Respondent-Mother both interacted and played together.

Ms. Noye testified that Respondent-Mother never explained why she missed visits and failed to attend the previous two service reviews. Although Ms. Noye supplies Respondent-Mother with bus passes, Respondent-Mother admitted that on approximately four different occasions she sold the bus passes for food money.

(6) Specific admissions regarding Petitioner-Aunt's care for A.C.:

Ms. Noye testified that Respondent-Mother admitted that Petitioner-Aunt provides appropriate care for A.C.. In April 2006 Respondent-Mother told Ms. Noye that because she could not care for A.C., she wished to give A.C. to Petitioner-Aunt. Ms. Noye also testified that sometime around March 2007 Respondent-Mother told her she did not appear in Court because she "[has]n't done anything that she was supposed to do. And [she] thought [she] was going to lose custody anyway."

B.Petitioner-Aunt's Testimony

Petitioner-Aunt testified that she has been employed with the City of Rochester for twelve (12) years as a service representative for the operations department. Her great niece, A.C., has been living with her in her one-bedroom home since February 2006. A.C. has her own space in the home and sleeps in a convertible crib. While Petitioner-Aunt is at work, A.C. attends daycare. Petitioner-Aunt testified that she is able to support A.C.; A.C. has health insurance and is current with well doctor visits and immunizations. Petitioner-Aunt currently resides in the Rush Henrietta School District. Petitioner-Aunt attends church regularly and A.C. participates in the Children's Church Ministry. Petitioner-Aunt has two adult sons who both have good relationships with A.C..

Petitioner-Aunt testified that when A.C. first moved in, she allowed Respondent-Mother to visit anytime she pleased - including overnights. She said visitation was changed to the Department because Respondent-Mother became "very disrespectful" to her. Petitioner-Aunt testified that Respondent-Mother cursed at her in front of A.C. because Petitioner-Aunt would not allow her "to take [A.C.] any time she wanted to." Petitioner-Aunt testified that she is willing to work with Respondent-Mother to arrange for Respondent-Mother to see A.C. "but [she] will not tolerate [Respondent-Mother's] disrespect." She testified that Respondent-Mother called her only five times since A.C. has been living with her - twice to speak directly with A.C..

Statement of Law:

(1)Custody Petition - Extraordinary Circumstances

As between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" (Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [4th Dept 1998], quoting Bennett v Jeffreys, 40 NY2d 543, 544 [1976] [emphasis added]; see also Matter of Wanda P. v Monroe County Dep't of Human Services, 10 Misc 3d 1076[A] [Fam Ct, Monroe County 2006]). Here, although the Department [*8][*9]

alleged that Respondent-Mother neglected A.C., it consented to the ACD order.[FN3] There was no neglect finding against Respondent-Mother and Petitioner-Aunt herein fails to prove "persisting neglect" - or other like extraordinary circumstance.

A finding of extraordinary circumstances is rare, and the circumstances must be such that they "drastically affect the welfare of the child" (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215 [4th Dept 2007], quoting Bennett v Jeffreys, 40 NY2d at 549 [1976]). "The courts and the law are powerless to supplant parents except for grievous cause or necessity or gross misconduct. A parent will not be deprived of his or her right to custody merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better raise the child" (id. quoting Matter of Male Infant L., 61 NY2d 420, 427 [1984] [internal citations omitted]). Here, while all parties - including Respondent-Mother - agree that Petitioner-Aunt is entirely capable and ready to raise A.C., the Court cannot even look to the child's best interests unless grievous cause, necessity or gross misconduct is proven. Without such a finding, the inquiry ends (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215 [citations omitted]).

Although Respondent-Mother is not now in a position to have A.C. returned home, the ACD was entered just over one year ago, the permanency goal up until now has remained "return to parent" and the Department never alleged that Respondent-Mother violated the terms of the ACD order. "Persistent neglect" amounts to more than FCA Article 10 neglect and has even been defined as "permanent neglect" (Matter of Bisignano v Walz, 164 AD2d 317 [3d Dept 1990], cited by the Fourth Department in Matter of Penny K. v Alesha T., 39 AD3d 1232 [2007] and Matter of Lynda A.H. v Diane T.O., 243 AD2d 24 [1998], lv denied 92 NY2d 811 [1998]). While the Department argued that Respondent's actions were akin to permanent neglect, a "permanently neglected child" is one who has been in the care of the Department and "whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship. . ." (Social Services Law § 384-b [7] [a]). Notwithstanding that A.C. has been in care for just over one year, there was only minimal testimony regarding the Department's efforts to encourage and strengthen the parental relationship. Indeed, Department regulations require that when a permanency goal is "return to parent" - as it has been here - the Department must both facilitate at least biweekly visits and "follow-up with the parent. . . when scheduled visits do not occur in order to ascertain the reasons for missed visits and to make reasonable efforts to prevent similar problems in [*10][*11]future visits" (18 NYCRR 430.12 [d] [1] [i] [b]). The Department must document all "follow-up efforts. . . undertaken when scheduled visiting has not occurred" (18 NYCRR 430.12 [d] [1] [ii] b]). Although Ms. Noye testified that Respondent-Mother never explained her missed visits, reliance on this fact alone would inappropriately place the onus upon Respondent only.

The New York State Supreme Court Appellate Division, Fourth Department recently reversed a family court that found extraordinary circumstances where petitioner parent voluntarily separated herself from her child moving out of state for nine months (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215 [4th Dept 2007]; see also Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292-293 [4th Dept 1996] [parent's voluntary relinquishment of physical custody is not sufficient by itself to deprive the parent of custody]). During that nine-month period petitioner visited her child on only four (4) occasions, although maintaining regular telephone contact (id.). Here, Respondent-Mother also voluntarily separated herself from her daughter by signing a consent to temporary placement. While Respondent-Mother has not exercised her full right to visitation, Ms. Noye testified that during the ten (10) visits that she supervised,[FN4] the contact between Respondent-Mother and A.C. was appropriate. Although A.C. acted shy around Respondent-Mother at first (not unusual toddler behavior), she warmed to her. There was no evidence regarding how many visits occurred before Ms. Noye became involved with the case. Petitioner-Aunt testified that Respondent-Mother called only five times to inquire about A.C. and only twice talked directly with A.C.; unlike in Matter of Jenny L.S. where petitioner maintained consistent telephone contact, however, here A.C. is only two years old. There was no evidence concerning the child's ability to communicate effectively over the telephone. Interesting in Matter of Jenny L.S. - as here - the Law Guardian advocated that extraordinary circumstances were proven, yet the Court nonetheless found that there was not enough evidence for such a finding.

A parent's voluntarily relinquishment of her child constitutes one factor to consider in whether extraordinary circumstances have been proven; however courts should look at both the parent's intent in relinquishing physical custody and whether such relinquishment was intended to be temporary (Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 293). Here, Respondent-Mother consented only to a temporary removal of A.C. because she was overwhelmed. The underlying FCA Article 10 case was never tried. Respondent-Mother told Ms. Noye that she wanted to give A.C. to Petitioner-Aunt, but she later explained that she assumed she was going to lose custody of A.C. anyway. Although the Court takes a negative inference of Respondent-Mother's failure to appear at trial, Respondent-Mother did appear at the prior court date for argument of the motion to dismiss the custody petition (where the Court reserved decision). At that appearance Respondent-Mother did not consent to a permanent relinquishment of custody. [*12][*13]

Ms. Noye testified that she personally observed Respondent-Mother's mental health issues, but did not affirmatively contact Respondent-Mother to follow up about having a mental health evaluation; rather she told Respondent-Mother about the importance of mental health treatment each time she saw Respondent-Mother at visitations (although Ms. Noye also testified that Respondent-Mother visited only sporadically). Respondent-Mother also failed to complete substance abuse treatment and does not have adequate housing for A.C., but she did complete her parenting requirement under the ACD order.

The Department argues that extraordinary circumstances are established, in part, by an incident sometime around July 2006 that instigated a limitation on Respondent-Mother's visitation rights. Petitioner-Aunt testified that when A.C. first came to live with her, she allowed Respondent-Mother to visit anytime including overnights. Petitioner-Aunt then ceased allowing Respondent-Mother to visit with A.C. in her home because Respondent-Mother cursed at her in front of A.C. when Petitioner-Aunt would not allow her to "take [A.C.] any time she wanted to." While Petitioner-Aunt testified that if she was granted custody she would encourage Respondent-Mother to visit with A.C., she also testified that she would not tolerate Respondent-Mother's "disrespect." The Court is concerned that without Department oversight [FN5] communication between Petitioner-Aunt and Respondent-Mother might deteriorate even more and A.C.'s relationship with her mother consequently would suffer. Indeed one factor to consider in whether extraordinary circumstances exist is whether an award of physical custody would deprive the parent of all custodial rights (Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 294). In Matter of Michael G.B. the respondent biological parent, although losing primary residency, retained her right to joint custody of the child - a factor important to the court in finding extraordinary circumstances. Here, Petitioner-Aunt seeks full custody and without Department oversight it is unlikely that visitation - or any type of relationship - between A.C. and Respondent-Mother would be fostered.

In sum, Petitioner-Aunt did not prove the requisite "extraordinary circumstances" and thus her custody petition is dismissed. The Court did not - nor could it (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215 [citations omitted]) - reach the issue of A.C.s best interests on the FCA Article 6 custody proceeding.

(2)PPH - Permanency Goal

The Court nonetheless was required to consider A.C.'s best interests to determine whether a change of permanency goal is necessary under the FCA Article 10 proceeding. Family Court Act § 1089 requires the Court to conduct periodic permanency hearings with an ultimate goal of ensuring that parties are working towards permanency for the child - so that no child will linger in foster care. At these hearings, the Court shall consider "the best interests and safety of the child" and where the child is not returned to the parent determine whether the permanency goal for the child should be approved or modified and the anticipated date for achieving the goal (Family Court Act § 1089 [d] [2] [i]). Permanency goals include, inter alia, "return to parent" or [*14][*15]"permanent placement with a fit and willing relative" (Family Court Act § 1089 [d] [2] [i] [A] [D]).

There is no case law interpreting what "permanent placement with a fit and willing relative" means in the context of Family Court Act § 1089; yet the language is not new and was part of a prior law which first coined the "permanency hearing" (Family Court Act § 1055 [b] [iv] [B] 5] [iv], Laws 1999, Ch 7). One family court, examining the then-newly required permanency hearings, opined that "permanent placement with a fit and willing relative" was utilized by the Legislature as an alternative to the Department having to file a termination of parental rights (TPR) petition (Matter of Marylou L. v Tenecha L., 182 Misc 2d 457, 466 [Fam Ct, Kings County 1999]). Social Services Law § 384-b [3] [l] [i] [A] requires, inter alia, that the Department file a TPR petition for any child in foster care for fifteen out of the most recent twenty-two months unless, inter alia, the child is being cared for by a relative (see also Department of Social Services Regulations, 18 NYCRR 430.12 [d] [2] [iii] [b] [requiring that the Department document that any child who has been in care for 15 out of the last 22 months has been discharged from foster care or that a TPR petition has been filed "unless the plan shows that the child is in the home of a relative" (emphasis added)]). Indeed, the Court of Appeals has emphasized the importance of promoting family stability by allowing placement with relatives as an alternative to foster care (Matter of Michael B., 80 NY2d 299, 316 [1992]). It is especially important because if a parent's rights have been terminated, a Court no longer can order any contact between the parent and the child - which may not be in the best interests of the child (see Matter of Jovan J., 7 Misc 3d 1028[A] [Fam Ct, Monroe County 2005] [where this Court noted its frustration that the law does not provide a mechanism to encourage, where appropriate, a non-traditional relationship between a child and his biological parent(s) after parental rights are terminated]).

Here, Petitioner-Aunt has cared for A.C. since February 2006. She has both steady employment and housing. She attends church regularly and has involved A.C. in her church ministry. While thriving in Petitioner-Aunt's care, A.C. also certainly benefits from continued contact with her biological mother; indeed Ms. Noye testified that visitation between Respondent-Mother and A.C. has been positive. No doubt A.C. deserves permanency but she also deserves a relationship - even if non-traditional - with her biological mother. The best interests of A.C. thus require that she find permanency in Petitioner-Aunt's care while maintaining a relationship with Respondent-Mother.

Can the permanency goal be changed to "permanent placement with a fit and willing relative" while still having Respondent-Mother under the care of the Department? The answer to this question is a resounding "yes" and in fact is what the law requires of the Department. Where the permanency plan is placement with a fit and willing relative the Department must continue to show that reasonable efforts are being made to finalize such permanent placement (Family Court Act § 1089 [d] [2] [iii] [B]). Further, in any case where placement of a child is extended, visits shall continue to occur (Family Court Act § 1089 [d] [2] [vii] [A]) and the Department shall be responsible for facilitating such visits. This is imperative since Petitioner-Aunt and Respondent-Mother have [*16][*17]disagreed in the past regarding visitation - currently requiring Department intervention in supervising visits. Even though Petitioner-Aunt has not proven extraordinary circumstances warranting a best interests analysis as to whether she should be granted custody, the Court nonetheless finds that modification of the permanency goal to permanent placement with Petitioner-Aunt is in A.C.'s best interest. All parties - including Respondent-Mother - agree that A.C. is doing well in Petitioner-Aunt's care. At first blush it appears incongruous to change the goal to "permanent placement with a fit and willing relative" while denying custody, yet such a compromise affords the parties an ongoing opportunity to work together to benefit A.C..

Family Court Act § 1089 - in requiring permanency hearings 60 days after removal and every six months after that - allows courts and parties some flexibility in planning for permanent placement of children with relatives while working out an arrangement to continue to foster the biological parent(s)' bond with the children. The Court herein modifies the permanency goal for A.C. to "permanent placement with a fit and willing relative." During the next six months the Department shall work with both Petitioner-Aunt and Respondent-Mother to improve their relationship to afford Respondent-Mother visitation with her daughter - eventually back in Petitioner-Aunt's home - as the new goal is for this to be A.C.'s permanent placement. The Court finds by a preponderance of evidence that this in A.C.'s best interests.

Now, therefore, it is hereby

ORDERED that Respondent's custody petition is denied; and it is further

ORDERED that the permanency goal is modified to "permanent placement with a fit and willing relative"; and it is further

ORDERED that the Department is charged with continuing to exercise diligent efforts with regard to engaging Respondent-Mother in services; and it is further

ORDERED that the Department work towards providing visitation between A.C. and Respondent-Mother in the home of Petitioner-Aunt.

Dated this 8th day of June, 2007, at Rochester, New York.

___________________________

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE Footnotes

Footnote 1: This Court previously determined that it was a natural extension of case law in conjunction with statutory mandates of Family Court Act § 1089 to hear both the permanency planning and custody hearing jointly (Matter of A.B. v D.W., __ Misc 3d __, 2007 NY Slip Op, 27218 [Fam Ct, Monroe County, decided April 26, 2007]).

Footnote 2: Although the ACD order was to expire on May 4, 2007 the parties consented to its extension until determination of the issues currently before the Court (see generally Matter of Jonathan W., 256 AD2d 1174 [4th Dept 1998] [an expired ACD order is not deemed dismissed when court proceeding is pending]; see also Matter of Sullivan County Department of Social Services v Richard "C", 260 AD2d 680 [3d Dept 1999], lv denied 93 NY2d 958 [1999] [ACD order expired but respondent's default constituted consent to continued placement of the children]).

Footnote 3: Department regulations require that a social services agent when acting as the petitioner in a child neglect proceeding shall not consent to an ACD order if such an ACD is not in the best interests of the child. Petitioner must consider, inter alia, the seriousness of the alleged incidents of neglect in determining whether to consent to an ACD (18 NYCRR 432.11 [a], [b] [3]).

Footnote 4: Ms. Noye testified that Respondent-Mother visited with A.C. a total of fifteen (15) times over a one-year period; however Ms. Noye personally supervised only ten visits and on this FCA article 6 custody petition, the Court can consider only non-hearsay testimony.

Footnote 5: The Department maintains that if the custody petition is granted, it would withdraw its neglect petition against Respondent-Mother, leaving her with no services.