Matter of Zoe "W."

[*1] Matter of Zoe "W." 2010 NY Slip Op 51993(U) [29 Misc 3d 1224(A)] Decided on November 18, 2010 Family Court, Clinton County Lawliss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2010
Family Court, Clinton County

In the Matter of Zoe "W." A Child under the Age of Eighteen Years Alleged to be Neglected by JONATHAN "W." and MELISSA "G.", Respondent.



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Clinton County Department of Social Services, Plattsburgh (Christine G. Peters, Esq., of counsel) for Petitioner

Kristofer S. Michaud, Esq., Plattsburgh, with and for Jonathan "W."

Cheryl Maxwell, Esq., Plattsburgh, with and for Melissa "G."

Kathleen R. Insley, Esq., Plattsburgh, Attorney for Zoe "W."

Timothy J. Lawliss, J.

On October 20, 2010, the Clinton County Department of Social Services filed two petitions under Article 10 of the Family Court Act alleging that Zoe "W." (d/o/b 3/31/2010) was a neglected child. One petition alleges that Zoe's mother, Melissa "G.", neglected Zoe. The other petition alleges that Zoe's father, Jonathan "W.", neglected Zoe. On October 21, 2010, at the initial appearance on both petitions, the Court conducted a hearing pursuant to FCA § 1027 on the Department's application for an order of removal. The Court has previously issued an order granting the removal application, but reserved on the issue of whether or not the Clinton County Department of Social Services made reasonable efforts to prevent the need for the removal of Zoe from her home. see, FCA § 1027(b)(ii). For the reasons stated below, this Court concludes that the Clinton County Department of Social Services did not make reasonable efforts to prevent the need for removal of Zoe from her home. [*2]

The Court begins by outlining the allegations contained in the portion of the petition that specified the basis of the alleged neglect [FN1]. On July 26, 2010, the New York State Central Registry received a report of suspected child abuse and/or maltreatment concerning the subject child Zoe and her twin brother Zachary. The Department's investigation revealed that the children's parents, Jonathan "W." and Melissa "G.", engaged in domestic violence in the direct presence of the subject children.

On August 31, 2010, caseworkers from the Department attempted to visit the home of subject child's parents. The caseworkers repeatedly knocked on the doors and windows for access, but ultimately entered the residence by force with the assistance of the New York State Police [FN2]. Upon entry of the residence, the caseworkers discovered that the parents were sleeping upstairs while the child Zoe was awake, unattended and propped on the couch. Zachary was unattended in his swing. The Department alleges that the parents' inadequate supervision of their children showed a serious flaw in their parental judgment and placed the infants at risk of physical harm.

On September 26, 2010, the New York State Central Registry received another report of suspected child abuse and/or maltreatment concerning the subject child. The Department's investigation revealed that the parents left Zachary propped in the corner of an overstuffed chair at 2:30 in the morning with a propped bottle of water, while the parents slept upstairs. When the parents went to Zachary at 9:00 a.m., Zachary was unresponsive and later determined to be dead of positional asphyxia.

Twenty four days after Zachary's death, the Department filed the instant petition alleging that as a result of both parents' flawed parental judgment, Zoe is a neglected child.

The Court now turns to the Department's allegations regarding reasonable efforts. In their petition, the Department asserts that the Department engaged in reasonable efforts to eliminate the need for removal of the subject child from the home. Specifically, the Department alleges:

As a result of the investigation [of the July 26th report] caseworkers initially recommended that Melissa "G." and Jonathan "W." engage in mental health counseling and substance abuse treatment.

The Court notes that the Department never alleges that either parent abused any substances or is mentally ill. The petition does not specify when the initial recommendations were made nor the results of recommendations. The Court called the child protective services supervisor who signed the neglect petition on behalf of the Department to provide testimony. The signing supervisor testified that she was unsure of when the original recommendations were made, except the recommendations were made sometime before the end of August of 2010. The supervisor testified that she is unsure if any mental health counseling or substance abuse treatment has, in fact, been provided to the parents.

Regarding reasonable efforts, the Department goes on to allege: [*3]

Melissa "G." was also recommended for traumatic brain injury assessment.

The Court notes that the Department does not provide any reason why a traumatic brain injury assessment was appropriate. The testifying supervisor could not identify when the recommendation for the assessment was made, except she believed that the recommendation was made before the end of August of 2010. Apparently, the assessment has not yet been completed.

The Department goes on to allege:

Caseworkers went out on three separate occasions after July 26, 2010 and as a result of those home visits, further recommendations were made to include, parenting class and preventive services.

It is unclear the exact dates of those three occasions. It appears that neither parent actually attended any parenting classes. If preventive services involved more than what was alleged in the petition, it is unclear what it involved.

The Department goes on to allege:

Additionally, caseworkers observed severe deficits in parenting and addressed those parenting issues in the home visits to include, but not limited to, making recommendations about bottle propping, safe sleeping, safe positioning of infants, and age appropriate developmental milestones.

The testifying supervisor could not specify when these recommendations were made, except to state that they were made on at least August 31, 2010.

The Department goes on the state

Subsequent to September 26, 2010 [the date Zachary died], Caseworkers developed Child Care Plans for the safety of the child, Zoe.

During her testimony, the testifying supervisor indicated that the voluntary child care plan agreed upon by the parents and the Department provided that the parents would have a friend of the family care for their surviving infant Zoe. When the parents disregarded this voluntary agreement on October 17, 2010, the Department again made recommendations to both parents that they engage in parenting classes, and, undergo a parenting assessment. Preventive services were again discussed.

Caseworkers again viewed the Respondents' apartment on October 18, 2010 and continued to make recommendations for services including, mental health services, substance abuse treatment, traumatic brain injury assessment, parenting assessment, parenting classes and preventive services.

The Department lists collateral contacts that were made concerning the children. The testifying supervisor indicated that these collateral contacts were made for purposes of gathering information regarding the Respondents in an effort to determine what services were appropriate.

The Department alleges that both parents refused preventive services and failed to cooperate with any caseworker recommendations. The Court notes that the Department of Social Services never filed any action in Court against either of the parents until October 20, 2010.

Although the grounds for the neglect include allegations of domestic violence, the [*4]reasonable efforts section of the Department's petition does not identify any services recommended or provided to the parents related to domestic violence.

The law does not create a presumption that the Department made reasonable efforts to eliminate the need for placement. The burden of proof on this issue rests with the Department of Social Services. The Department must come forward with evidence to establish that reasonable efforts were in fact made to eliminate the need for placement. In this case, assuming the allegations in the petition to be true and accepting as credible the testimony of the supervisor who signed the instant petition, the Court finds the Department has failed to meet its burden of proof for essentially two reasons. First, the Department failed to demonstrate that the services recommended to the parents were, in fact, tailored to address the particular problems facing the parents. Second, on the facts of this case, assuming removal was not required earlier for the children's safety, the Department's efforts should have included the filing of an Article 10 petition to seek orders directing the parents to comply with sufficiently tailored services.

The Court cannot conclude that the services offered were, in fact, tailored and appropriate to address the Respondents' problems. As noted above, the Department recommended substance abuse evaluations, mental health evaluations and traumatic brain injury assessments; however, there are no allegations in the petition that the alleged neglect was caused by either of the parents abusing substances, either of the parents' mental illness, or that either parent had a traumatic brain injury. see, In the Matter of Alaina E., 59 AD3d 882, 875 NYS2d 287 (3d Dept 2009) (diligent efforts required "appropriate services"); In the Matter of Olivia L., 41 AD3d 1226, 837 NYS2d 466 (4th Dept 2007) ("an agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated and meaningful efforts to assist the parent in overcoming these handicaps"); and In the Matter of Shiann RR., 285 AD2d 762, 726 NYS2d 816 (3d Dept 2001) (same).

Furthermore, upon the facts of this case as alleged by the Petitioner, reasonable efforts required more than simply making referrals which the Department knew were not being followed. see, In the Matter of Dustin "C", 19 AD3d 784, 796 NYS2d 460 (3d Dept 2005) (referral to county program, without more, was insufficient and petitioner should have made reasonable efforts to follow up on such referral or locate alternative services). see also, In re: A.J.H., 205 WL 3190324 (TennCtApp) ("Reasonable efforts entail more than simply providing parents with a list of service providers and sending them on their way. The Department's employees must use their superior insight and training to assist parents with the problems the Department has identified in the permanency plan, whether the parents ask for assistance or not."). Given the severe problems as described in the petition and the parents' non-compliance with any recommendations, reasonable efforts to eliminate the need for removal should have included the filing of an Article 10 petition against the parents - prior to the death of Zachary - in order to seek Court orders compelling the parents to participate in appropriate programs.

Lastly, nothing in this decision should be interpreted as approval of the Department's failure to seek removal prior to Zachary's death. The question of whether or not the Department made reasonable efforts to keep Zoe and Zachary safe is not before the Court. Certainly, there are times when a child's safety requires removal, rather than further efforts to prevent the need for placement. On the other hand, there are times when an application by the Department seeking orders requiring parents to engage in services can both make the child safer and constitute [*5]reasonable efforts to eliminate the need for placement.

SO ORDERED

Signed and Dated:Plattsburgh, New York

November 18, 2010

E N T E R

Hon. Timothy J. Lawliss

Family Court Judge Footnotes

Footnote 1:Obviously, the Court recognizes that these are only allegations. For purposes of this analysis, the Court is assuming the allegations are true; however, the Court is not making any findings of fact with respect to the allegations.

Footnote 2: The petition does not specify what information the caseworkers and the New York State Police possessed which led them to believe that forced entry was necessary.