Matter of Lawrence B. v Peter D.

[*1] Matter of Lawrence B. v Peter D. 2009 NY Slip Op 52311(U) [25 Misc 3d 1227(A)] Decided on November 6, 2009 Family Court, Nassau County Dane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2009
Family Court, Nassau County

In the Matter of a Proceeding under Article 6 of the Family Court Act, Lawrence B. and VICKI B., Petitioners,

against

Peter D., Respondent.



B-XXXX-XX



Joseph Carrieri, Esq., Attorney for the Petitioners

Carol J. Lewisohn, Esq., Attorney for the Respondent

Ann Cheris, Esq., Attorney for the Child

Bruce Loren, Esq., Attorney for the Mother

Kimberly Snow, Esq., Deputy County Attorney

Edmund M. Dane, J.

PROCEDURAL HISTORY

Preston V., the child who is the subject of these proceedings, was born on January 14, 2004, at which time the mother Debra V. (hereinafter, the mother) was married to Frank V. An order of filiation declaring the respondent Peter D. (hereinafter, the father) was entered on June 16, 2004. (The father was incarcerated at the time of Preston's birth, and was ultimately sentenced to a determinate sentence of ten years of incarceration upon his conviction for attempted robbery.) On September 9, 2004, while he was incarcerated in Nassau County, the father filed a petition seeking visitation with Preston, resulting in the issuance of an order of custody on December 2, 2004. The [*2]order provided that the mother would have custody of Preston, and the father would have visitation at the Nassau County Correctional Center at least once a month.

On December 25, 2004, Preston came into the care of the Nassau County Department of Social Services (hereinafter, DSS) as the result of an emergency removal pursuant to section 1024 of the Family Court Act. Preston was placed with foster parents Lawrence and Vicki B.(hereinafter, the petitioners) on December 28, 2004. DSS subsequently filed a petition against the mother alleging that Preston was a neglected child as a consequence of the mother's substance abuse. The court issued an order of fact finding and disposition with continued placement on May 10, 2005. At the time of disposition, and until July 2006, the permanency plan for Preston was reunification with the mother. On July 17, 2006, the court modified the permanency plan to adoption, and shortly thereafter, on August 21, 2006, changed to dual goals of adoption/reunification with the mother. On January 24, 2007, the court adopted dual goals of adoption/placement with a fit and willing relative, specifically Mary D., the paternal grandmother. In November 2006, at the direction of the court, DSS filed petitions to terminate the parental rights of both the respondent and the mother on the ground of permanent neglect. Those petitions were withdrawn in January 2007.

On July 17, 2007, the petitioners, who have cared for Preston continuously since he was first placed with them, initiated proceedings to terminate both parents' parental rights on the ground of permanent neglect.[FN1] The court subsequently denied a motion challenging the petitioners' standing to seek termination of parental rights, and ruled that the father's consent to Preston's adoption is required, i.e., that he is a "consent" father (see Domestic Relations Law § 111).

The petition to terminate the father's parental rights proceeded to trial separately from the petition naming the mother as a respondent, which has been held in abeyance pending the outcome of the petition against the father.

TRIAL TESTIMONYThe Petitioners' Case:

Justice Igiebor testified that he was assigned as the DSS Children's Services (foster care) caseworker for Preston's case at the time of Preston's removal on December 25, 2004, and that he continued in that role until May 31, 2006. Mr. Igiebor testified that the Child Protective Services (CPS) caseworker, Ivory D'Onofrio, visited the father at the Nassau County Correctional Center on or about January 5, 2005. Ms. D'Onofrio advised the father that Preston was placed into foster care and requested that the father provide a "plan for his son."

In response to Ms. D'Onofrio's request, the father identified his mother Mary D., whom he described as "elderly," as a potential placement resource. Ms. D'Onofrio initially concluded that Mary D. was not a viable resource based upon the father's characterization of his mother as "elderly." The father then suggested the mother's husband, Franklin V., as a possible placement resource.

At a meeting with Mr. Igiebor on January 6, 2005, Franklin V. agreed to be a resource for [*3]Preston Within days, DSS performed a home inspection of Mr. V.'s apartment and determined that it was unsuitable. Accordingly, Mr. V. was deemed not viable as a resource.

Mr. Igiebor testified that between January 6, 2005, and July 27, 2005, no visitation was arranged between father and son and there were no attempts to arrange for planning. A subsequently planned visit with the father at the Nassau County Correctional Center did not take place because the father had been moved to a correctional facility upstate.

Mr. Igiebor acknowledged that subsequent to the father's meeting with Ms. D'Onofrio on January 5, 2005, the father wrote eight letters addressed to Mr. Igiebor and/or his supervisor, Barbara Dawson. Mr. Igiebor delayed responding to these letters until November 2, 2005, when he wrote a letter to the father introducing himself as the assigned caseworker and informing the father that Preston remained in foster care. The explanation proffered for the delay in responding to the father's correspondence was the father's movement from facility to facility.

Mr. Igiebor also acknowledged that during his tenure as the assigned caseworker, he received letters from the father "nearly every week." These were in addition to letters addressed to Preston every one or two weeks, which correspondence was maintained in the case file.

On January 4, 2006, Mr. Igiebor notified father of the need to plan for his son in order to avoid termination of his parental rights, and requested placement resources for Preston In response, the father offered Ann Marie T. as a visiting resource and indicated that he "couldn't plan for his son while in jail." Ms. T., like Mary D. and Franklin V., was deemed not to be a viable resource.

Deborah White testified that she was assigned as the Children's Services caseworker in June of 2006, and continued in that role until July 2007. Ms. White initially reviewed the case file and the father's multiple letters to DSS dated from July 26, 2005 to June 4, 2006. The father's letters reflected his concern for his son; requested visitation with Preston and complained about not having any visitation since the child's placement in foster care; expressed the father's desire to enter a parenting program; complained about DSS's failure to send photographs of Preston; inquired as to the status of Debra V.'s efforts toward reunification with Preston; indicated that he had a specific job waiting upon his release from prison in 2009; stated that the father wanted his son returned to him upon his release from prison; indicated that the father's attorney wanted to deliver a Christmas present for Preston; identified Mary D. as a placement resource; and complained about the lack of communication from DSS.

Ms. White wrote thirteen letters to the father during her tenure as caseworker. Two of these letters, written in August 2006, advised the father of the impending filing of a petition to terminate parental rights and requested "information." That same month Ms. White forwarded correspondence to Franklin V., again inquiring as to whether he would consider serving as a possible resource for the child. On September 19, 2006, Ms. White met with the father at the Nassau County Correctional Center to arrange a possible visitation opportunity and discuss resources. At that time, the father proposed Mary D. and Lourdes P. Ms. P. ultimately declined to be resource.

On September 21, 2006, Ms. White notified Ms. D. that Preston was in foster care and that her name was tendered as a possible resource. Ms. D. was previously unaware that her grandson was in foster care. On October 6, 2006, during Ms. White's visit to Ms. D.'s home, the grandmother agreed to be a resource for Preston. Ms. D. filed a custody petition with this court on May 7, 2007. From September 2006 until after the commencement of this proceeding, DSS considered Ms. D. as a potential viable resource for Preston. [*4]

Recalling that the Family Court ordered DSS to file termination petitions in 2006, Ms. White testified that DSS had not filed for termination earlier because the father's letters indicated he was continuing to plan for his son, gave resources to the Department, requested visitation and had employment waiting upon his release from incarceration. DSS did not facilitate the father's request to attend parenting classes or service planning reviews because he was in a correctional facility. These factors led to the withdrawal of the termination petitions filed by DSS.

Ms. White testified that she took the child to visit the father three times, and that she exercised diligent efforts to help the father, including writing letters to him providing updates on Preston, continuing to work with possible placement resources, and correspondence to the father's criminal attorney to ascertain whether the father was engaged in parenting classes. Ms. White further testified that the father kept in regular contact with DSS.

Petitioner Vicki B. testified that she is married to petitioner Lawrence B. Ms. B. was certified as a foster parent by DSS in 2003, and Preston has been in her continuous care since December 28, 2004. Ms. B. has attended every planning service review since Preston has been placed in her care.

The Respondent's Case:

The respondent father, Peter D., testified that he was incarcerated beginning May 22, 2003, prior to Preston's birth, but is now released after serving seven years in jail. He did not file a petition to establish paternity because he knew that Preston was his son. After DSS filed the petition to establish paternity, DNA testing was ordered by the court because the mother, Debra V., was married to Franklin V. at the time of Preston's birth. An order of filiation adjudicating Mr. D. as the father was entered on June 17, 2004.

Shortly thereafter, the father filed a petition seeking visitation. The resulting order, granting the father visitation one time per month at the Nassau County Correctional Center, was complied with until Preston was removed from his mother and placed in the care of DSS in December of 2004. The father's subsequent filing of a petition seeking a modification of visitation was dismissed by the court.

The father testified that DSS's plan for Preston, which he approved, was placement of Preston with Franklin V. It was not until approximately two years after Preston was removed from the mother's care that the father became aware that Mr. V. had not been approved by DSS as a viable resource.

Between January 2005 and September 2005, the father sent numerous letters attempting to learn the assigned caseworker's name and his son's status. This was in addition to near daily letters addressed to DSS, intended to be given to his son. The postage for this correspondence was paid for from the father's six dollar bi-weekly stipend.

In September 2005, the father received a letter from Mr. Igiebor introducing himself as the assigned caseworker. In response, father sent letters requesting visitation, and information regarding his son's status, in addition to inquiring whether the mother was still working toward reunification.

The next correspondence the father received from Mr. Igiebor was in 2006, advising him that DSS was still working with the mother but that a termination petition was possible, and emphasizing the need for placement resources for Preston In response, the father wrote to Mr. Igiebor's supervisor, Barbara Dawson, expressing concern about the possibility of a termination petition, [*5]offering to "do whatever is needed," and providing additional information about the paternal grandmother. The father did not receive a response to this letter.

Regarding his plan for Preston, the father testified that he completed a parenting class while incarcerated and had a job waiting upon his release, and that he provided DSS with documentation thereof. The father also planned to rent a house after his release from prison.

Documentary Evidence:

The case record and UCR maintained by DSS from September 20, 2005 to July 17, 2007 were admitted into evidence as Petitioners' exhibit 1. The case record and UCR from January 2005 to August 2005 were admitted into evidence as Petitioners' exhibit 2. Thirteen letters written by the DSS caseworkers to Respondent were admitted into evidence as Petitioners' exhibit 3. An affidavit executed by Debora White was admitted into evidence as Petitioners' exhibit 4. Letters from the respondent father were admitted into evidence as Respondent's exhibit A. All of the above evidence was admitted upon consent of all counsel, and judicial notice was taken of all prior proceedings before the court.

DISCUSSIONSocial Services Law § 384-b(1)(b) expresses the legislative findings and intent warranting the termination of parental rights to a dependent child. This section provides: The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the birth parents could reduce such unnecessary stays.It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the birth parent are protected, but also, where positive, nurturing parent child relationships no longer exist, furthering the best interest, needs, and rights of the child by terminating parental rights and freeing the child for adoption.

An order committing the guardianship and custody of a child shall be based upon clear and convincing proof (see Social Services Law § 384-b[3][g][i]) and a finding, inter alia, that the child is a permanently neglected child (see Social Services Law § 384-b[4][d]).

A permanently neglected child is defined in Social Services Law § 384-b(7)(a) as: a child who is in the care of an authorized agency 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 [*6]the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child

(see also Family Court Act § 614 [c], [d]).

Social Services Law § 384-b(7) continues in relevant part as follows: (b) For the purposes of paragraph (a) of this subdivision, evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact. (c) As used in paragraph (a) of this subdivision, "to plan for the future of the child" shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent. (d) For the purposes of this subdivision: (i) A parent shall not be deemed unable to maintain contact with or plan for the future of the child by reason of such parent's use of drugs or alcohol, except while the parent is actually hospitalized or institutionalized therefor; and (ii) The time during which a parent is actually hospitalized or institutionalized shall not interrupt, but shall not be part of, a period of failure to maintain contact with or plan for the future of a child.(e) Notwithstanding the provisions of paragraph (a) of this subdivision, evidence of diligent efforts by an agency to encourage and strengthen the parental relationship shall not be required when:(i) The parent has failed for a period of six months to keep the agency apprised of his or her location; or(ii) An incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to assist such parent to plan for [*7]the future of the child, as such phrase is defined in paragraph (c) of this subdivision, or in such agency's efforts to plan and arrange visits with the child as described in subparagraph five of paragraph (f) of this subdivision.

In a permanent neglect proceeding, the threshold inquiry is whether the agency has met its statutory duty to exercise diligent efforts to encourage and strengthen the parental relationship (see Matter of Shi'ann FF., 47 AD3d 1133 [3d Dept 2008]; Matter of Antonio EE., 38 AD3d 944, 945 [3d Dept 2007]). Underscoring this threshold issue is the Legislature's directive charging child care agencies with the initial obligation to assist parents in regaining custody of children committed to foster care. The Court of Appeals, in Matter of Sheila G. (61 NY2d 368 [1984]), determined that: the Legislature . . . has recognized that the degree to which a parent has upheld his or her obligations to such children cannot be meaningfully measured when the agency itself has not undertaken diligent efforts on behalf of reuniting parent and child. It has declared as a matter of public policy that the State may not intervene to terminate a parent's rights when assistance in strengthening the family has not been forthcoming. Therefore, proof by the child-care agency that it has satisfied its statutory obligation is a threshold consideration and a necessary prerequisite to any determination of permanent neglect.

The statutory meaning of "diligent efforts" is codified in Social Services Law § 384-b(7)(f) as reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to: (1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family; (2) making suitable arrangements for the parents to visit the child except that with respect to an incarcerated parent, arrangements for the incarcerated parent to visit the child outside the correctional facility shall not be required unless reasonably feasible and in the best interest of the child; (3) provision of services and other assistance to the parents, except incarcerated parents, so that problems preventing the discharge of the child from care may be resolved or ameliorated; (4) informing the parents at appropriate intervals of the child's progress, development and health; and(5) making suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visiting is in the best interests of the child. When no visitation between child and incarcerated parent has been arranged for or permitted by the authorized agency because such visitation is determined not to be in the best interest of the child, then [*8]no permanent neglect proceeding under this subdivision shall be initiated on the basis of the lack of such visitation. Such arrangements shall include, but shall not be limited to, the transportation of the child to the correctional facility, and providing or suggesting social or rehabilitative services to resolve or correct the problems other than incarceration itself which impair the incarcerated parent's ability to maintain contact with the child. When the parent is incarcerated in a correctional facility located outside the state, the provisions of this subparagraph shall be construed to require that an authorized agency make such arrangements with the correctional facility only if reasonably feasible and permissible in accordance with the laws and regulations applicable to such facility.

Here, Preston went into care in December of 2004, and the assigned Children's Services caseworker, Mr. Igiebor, apparently made no effort to contact the father until almost a year later in November of 2005, despite the father's numerous letters to DSS asking for information and pictures of Preston, requesting visitation, and inquiring as to the mother's progress toward reunification. The record indicates that Mr. Igiebor's only other correspondence with the father was in January and April of 2006. When Ms. White took over as the assigned caseworker in June of 2006, she corresponded with the father more regularly, arranged visitation for him when he was transferred to the Nassau County Correctional Center for a court appearance on at least one occasion, updated him as to his mother's progress in obtaining custody, and inquired as to the father's expected release date and any efforts he had made to prepare himself for the parenting challenges that he would face upon his release.

Although Ms. White's efforts were an improvement over Mr. Igiebor's, the ultimate question is whether the petitioners have proven by clear and convincing evidence that DSS made diligent efforts to strengthen and encourage the father's relationship with Preston (see Social Services Law § 384-b[7][a]). Based on the evidence before the court, the petitioners have not met their burden. Despite the father's repeated requests for information regarding Preston's well-being and the overall progress toward the goal of getting Preston out of foster care, DSS's response was minimal. DSS correspondence with the father was sporadic at best, and telephone contact was almost non-existent. Efforts toward reunification with the mother appear to have distracted DSS from supporting the father's relationship with Preston (see Matter of Shi'ann FF., 47 AD3d 1133, supra). Not only did DSS fail to make a concurrent plan involving the father, it also failed to provide him with any details regarding the mother's progress toward reunification. The possibility of arranging visitation for the father during his incarceration appears to have been ruled out at the outset (see TPR Referral form dated August 11, 2006), without any reconsideration as the father was transferred to various correctional facilities. The only information the father received regarding Preston's progress and well-being was a comment in one letter that Preston was "healthy and well taken care of . . . very active and is fast learning how to speak" (see letter dated November 2, 2005). Despite the father's specific requests to participate in service plan meetings, there is no indication that DSS ever considered attempting to arrange for the father to participate by telephone. All in all, efforts to strengthen and encourage the father's relationship with his son were less than diligent (see Social Services Law § 384-b[7][f]; cf. Matter of Kimberly V., 21 AD3d 1118 [2d Dept 2005]; Matter of Love Russell J., 7 AD3d 799 [2d Dept 2004]; Matter of Baby Girl C., 1 AD3d 593 [2d Dept 2003]; [*9]Matter of Vedal Dural B., 289 AD2d 574 [2d Dept 2001]; Matter of Joseph Jerome H., 224 AD2d 224 [1st Dept 1996]).

Although the lack of diligent efforts by DSS is fatal to the petition, it merits noting that the evidence was also insufficient to demonstrate that the father failed to plan for Preston's future. During the period between Preston's placement in care and the filing of the petition, the father corresponded regularly and frequently with DSS, despite the fact that DSS rarely responded to his letters. The father regularly inquired into such matters as Preston's well-being, the mother's progress toward reunification, and the status of investigations into possible placement resources that he had identified. He also kept DSS informed of his whereabouts as he was transferred from facility to facility, requested visitation with Preston at every opportunity, asked for assistance in getting transferred to a facility that provided parenting education for inmates, and repeatedly asked what he could do to make sure that his parental rights were not terminated. The paternal grandmother, whom the father first proposed as a resource in January 2005, was not actually pursued by DSS as a possible resource until September 2006. Ms. D. was part of the approved permanency plan from January 2007 until well after the commencement of this termination proceeding. Under the circumstances, it appears that the father did everything within his power to plan for Preston's future (see Social Services Law § 384-b[7][c]; cf. Matter of Love Russell J., 7 AD3d 799, supra; Matter of Baby Girl C., 1 AD3d 593, supra; Matter of Joseph Jerome H., 224 AD2d 224, supra).

The court is well aware of the strong bond that the petitioners have developed with Preston. Indeed, they have served as Preston's primary care givers for almost five years, and it is clear that they care very deeply for him. Nevertheless, the burden of demonstrating grounds to terminate an individual's parental rights is a high one, and has not been met in this case.

Based on the foregoing, it is hereby

ORDERED that the petition is dismissed.

This constitutes the decision and order of the Court.

IF THIS ORDER IS ENTERED BY A JUDGE, PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT,30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT OR 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, WHICHEVER IS EARLIEST.

ENTER

_____________________________

HON. EDMUND M. DANE

Dated: November 6, 2009 Footnotes

Footnote 1: On July 19, 2007, the court approved a goal of referral for legal guardianship by the paternal grandmother. In January and September of 2008, the court approved the goal of placement with a fit and willing relative, specifically the paternal grandmother. On March 27, 2009, the court approved a dual goal of adoption and reunification with the father. The paternal grandmother is no longer a part of the permanency plan for reasons which are not relevant to this proceeding.