Matter of Administration for Children's Servs. v Sonia R.

[*1] Matter of Administration for Children's Servs. v Sonia R. 2010 NY Slip Op 52341(U) [30 Misc 3d 1211(A)] Decided on December 6, 2010 Family Court, Bronx County Lupuloff, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2010
Family Court, Bronx County

In the Matter of a Proceeding Under Article 10 of the Family Court Act Administration for Children's Services, Petitioner,

against

Sonia R. and Larry W., Respondents.



NN-14937-04

Karen I. Lupuloff, J.

Sonia R. (hereinafter "Sonia") and Larry W. (hereinafter "Larry") are the parents of seven children. They have been respondents in New York State Family Court child protective proceedings for the last ten years. During the last decade, children have been born and removed from the care of Sonia and Larry. Children have been returned to them, only to be placed in foster care again due to the failure of both parents to provide a minimum degree of supervision and guardianship to the children. For the reasons that follow, this Court, the seventh judicial officer to preside over the family's cases, orders the New York City Administration for Children's Services (hereinafter "ACS") to cause the filing of termination of parental rights petitions as to the five children still in foster care and under the Court's authority.

PROCEDURAL HISTORY



The First ACS Petition

The Respondent-parents, Larry and Sonia, were first brought before this Court after ACS filed a child neglect petition in July 2000, naming as subject-children the Respondents' five [*2]daughters: Shanice, then-age 9; Shante, age 8; Larice, age 4; Sonia age 1½; and Marilyn, age 5 months. While the existing record of this ten-year-old case does not detail the allegations of the first petition, it is clear that the service plan sought by ACS included, for both Respondents, substance abuse treatment, assistance finding suitable housing, and assistance obtaining day care for the children. In addition, Sonia was to receive mental health services and domestic violence counseling and Larry was to attend a batterer's intervention program. Initially, the Court removed all five daughters from the home. The children were returned to the Respondents' care after three months with a temporary order of protection prohibiting Larry from harming Sonia and the children.

The Respondents' first case was resolved with an order for a twelve-month Adjournment in Contemplation of Dismissal (hereinafter "ACD"), pursuant to Family Court Act section 1039 (hereinafter "FCA"). The ACD, issued in June 2001, required both Sonia and Larry to remain compliant with their respective service plans. A review of the record in existence reveals that Larry apparently failed to complete the batterer's intervention program. Nevertheless, no petitions against either parent were filed alleging violations of the ACD, and this first case was dismissed in their favor in June 2002.

The Second Petition

Just two months later, in August 2002, ACS filed its second neglect petition against Sonia and Larry, this time naming as subject-children their five daughters and their then-infant son, Larry Jr. The petition alleged that Larice, age 5, had been brought to the hospital with abdominal pain and urinary bleeding and that the Respondents had failed to bring her to follow-up appointments for a sexual abuse evaluation. The petition further alleged that Sonia and Larry failed to provide food for the children or infant formula for Larry Jr., and that Larry committed acts of physical violence against Sonia, resulting in her suffering black eyes and scratches. The Court removed the children for approximately one week and then returned them to Sonia upon the issuance of a temporary order of protection (hereinafter "TOP"), excluding Larry from the home. Larry was again ordered to complete a batterer's intervention program and Sonia was directed to enter psychotherapy, obtain financial counseling, and bring the children to follow-up medical appointments. The Court lifted the exclusion provision from the TOP in September 2002, permitting Larry to return home but prohibiting him from harming Sonia in any way.Larry and Sonia admitted to the charges in the neglect petition in December 2002. Larry admitted to neglecting the children by committing acts of domestic violence against Sonia, thereby placing the children at risk of harm. He also admitted that he did not complete the batterer's intervention program. Sonia admitted to neglecting the children by failing to provide them with adequate food and by failing to provide them with a minimum degree of supervision.

The Respondents were again given the opportunity to have the charges against them ultimately dismissed, as both received dispositions of twelve-month suspended judgments, pursuant to FCA section 1053. All of the children were released to Sonia as part of the disposition and the parents were ordered to comply with ACS supervision. A one-year final order of protection was issued against Larry, again excluding him from the home and prohibiting him from harming Sonia or the children.

In December 2003, the suspended judgments were extended for an additional twelve [*3]months, pursuant to FCA section 1053(b), as neither Respondent had yet completed their service plan. Successive extensions of supervision were granted in the 2002 case.

The Third Petition

ACS filed its third neglect petition against Sonia and Larry in July 2004. This time, the Respondents' seventh child, Jeremiah, born in 2003, was added to the list of subject children. ACS alleged that the nine-person family was residing in a one-bedroom shelter apartment. The petition charged that the three oldest daughters had been chronically absent from school without excuse, with 13-year-old Shanice missing 70 days, 12-year-old Shante missing 54 days and 8-year-old Larice missing 78 days of the 2003-04 school year. The petition further charged that the other four children (Sonia, Marilyn, Larry Jr., and Jeremiah) were at risk of being derivatively neglected.

The children remained in Sonia and Larry's care during the pendency of this third case. Neither Respondent appeared at the trial scheduled in October 2004, and a fact finding inquest was conducted. A finding of educational neglect was entered against both parents regarding the children Shanice, Shante, Larice and Sonia but the charges were dismissed regarding Marilyn, Larry Jr. and Jeremiah, the three youngest. In January 2005, the Respondents appeared for the dispositional phase. The children were released to the Respondents pursuant to FCA section 1052 (a)(ii). They were ordered to ensure that the children attended school regularly; comply with ACS referrals; and permit ACS services to be provided in the home. Larry was ordered to finally attend and complete the batterer's intervention program.

Unfortunately, neither Respondent complied with the Court's mandates, and, in August 2006, pursuant to FCA section 1061, modifications of the dispositional orders in the 2002 and 2004 cases were issued, and all seven children were placed with ACS.[FN1] Placement was ordered because: Sonia was not attending therapy and was at times acting erratically; Larry had not completed the batterer's program; the child Marilyn, was not receiving proper vision care; three-year-old Jeremiah was found in the home naked and unwashed; the school-aged children had not been attending; and ACS was often not granted access to the home.

The children were placed in four different foster homes. By January 2007, at a permanency planning hearing to determine the future placement of the children, the Respondents still were not complying with any court-ordered services. Larry was still not participating in batterer's treatment and court-ordered anger management programs and Sonia had failed to participate in mandated counseling and parenting classes. The Court learned that the parents' erratic, violent, and inappropriate behavior was putting them at risk of eviction from their shelter home. Nevertheless, in March 2007, housing appeared stable and the Court released the two oldest daughters, Shanice and Shante, aged sixteen and fifteen respectively, to the Respondents' care on a trial discharge.

A year later, in February 2008, Larry and Sonia, together with their daughters Shanice and Shante, were still living in the shelter apartment while the five younger children (Larice, Sonia, Marilyn, Larry Jr. and Jeremiah) remained in foster care. Although the Respondents were [*4]allowed weekend supervised visitation with the five children, their visits were infrequent and Respondents often arrived late to the visits they did attend. The Respondents refused to permit early intervention evaluations for the two youngest children, Larry Jr. and Jeremiah. The Respondents did not comply with ordered parenting skills courses, therapy, anger management, or domestic violence programs. And their children in foster care suffered: all five children evinced adjustment and psycho-social problems, and Larry Jr. and Jeremiah were uncontrollable during visits with the Respondents.

The Fourth Petition

In March 2008, ACS filed its fourth petition against the Respondents. This time, the children named were Marilyn, Larry Jr., and Jeremiah, then 8, 6, and 5-years-old, respectively. This time, ACS recited the parents' continuing noncompliance with court-ordered services and Sonia's failure to consent to Larry Jr. receiving psychiatric medication. Additionally, ACS alleged that Sonia had tested positive for marijuana the previous month and that, on at least one home visit during which Shanice and Shante were present, the apartment smelled of marijuana.

The Respondents subsequently demonstrated some compliance with court orders and, as a result, in July 2008, all five children in foster care were returned to their home. The Court also ordered a final discharge for the children Shanice and Shante. Yet, just over two months later, on September 26, 2008, the five youngest children were again removed. This time, the Court's removal was based on a complete lack of food in the shelter apartment, the childrens' continued absence from school, and the parents' utter refusal to cooperate with ACS.

The Fifth Petition

In August 2008, a new neglect petition was filed regarding the oldest daughters, Shanice and Shante, now ages 17 and 16. This petition alleged that the Respondents committed educational neglect by not ensuring that their daughters attended school; that Sonia exhibited violent and erratic behavior at the shelter, placing the family at risk of eviction; that the Respondents were preventing shelter staff from entering the apartment; and that the Respondents were not accepting referrals made by the shelter for job training. Shanice and Shante were permitted by the Court to remain home with the Respondents pursuant to a parole order under ACS supervision.

Meanwhile, the situation with the two youngest boys in foster care began to deteriorate. Larry Jr. and Jeremiah exhibited aggressive and uncontrolled behavior and threatened to harm their foster parents. As a result, both boys were repeatedly moved from foster home to foster home.

In October 2008, the Court opined that the Respondents' visitation with their children in foster care was "a mess" and that Sonia and Larry's infrequent, late visits, combined with Sonia's inappropriate behavior during visitation, were having detrimental effects on the children. On at least one visit, Sonia made a serious threat to agency staff - so serious that the police were called. Sonia's behavior caused the children considerable stress, as demonstrated by their bouts of crying and their own erratic and violent behavior. Sonia and Larry continually refused to work with ACS and were not enrolled in any mandated services.

Later, in the spring of 2009, after repeated warnings, the Respondents were discharged [*5]from their shelter apartment. Larry tested positive for marijuana at a mandated drug test and Sonia presented an adulterated urine sample. The Respondents missed three weekend visits and many additional agency visits, greatly upsetting the children.

In court on June 16, 2009, the Respondents resolved the two 2008 neglect petitions pending against them by submitting to the jurisdiction of the court, pursuant to FCA section 1051(a), and allowing findings of neglect to be entered without admission. For the 2008 case regarding Shanice and Shante, the findings of neglect, in summary, stated that the Respondents had prior findings of educational neglect regarding these two children, and that, in this case, the Respondents failed to enroll the children in school, rejected all outreach efforts by the Department of Education or other social service agencies and that the Respondents provided constant excuses for their daughters' absences. Findings were also made that the Respondents neglected Shanice and Shante by refusing to follow shelter regulations, refusing to attend meetings with shelter staff and employment counselors, by exhibiting volatile behavior towards the staff, and by thereby causing the family to be on the verge of eviction and homelessness. For the 2008 case regarding Jeremiah, Larry Jr. And Marilyn, the findings of neglect in summary stated that the Respondents had prior findings of neglect, that the Respondents never complied with prior dispositional orders, including requirements that they submit to random drug and alcohol tests, attend therapy and complete domestic violence courses, that the Respondents failed to comply with drug treatment, that the Respondents failed to sign consents for medication prescribed for Larry Jr., and that the Respondents failed to comply with the many referrals for various services made to them over the years since the first petition was filed.

At the dispositional phase, completed in July 2009, Shanice and Shante were again released to the Respondents with twelve-months of ACS supervision. Marilyn, Larry Jr. and Jeremiah were placed with ACS. The children Larice and Sonia remained in foster care as well, pursuant to the permanency hearing orders from the earlier, 2004 case. The new set of dispositional orders required the Respondents to submit to random drug and alcohol tests and test negative, maintain adequate housing, visit regularly with the children, participate meaningfully in therapy, and maintain insurance so they could receive the mandated services. The Respondents once again refused to submit to a drug and alcohol test, this time, in the Court's own Family Treatment Court offices.

Continuing Post-Disposition Review

The Undersigned began presiding over the family's cases in September 2009. While the three girls in foster care (Sonia, Larice and Marilyn) seemed to be better adjusting to their respective foster homes, Larry Jr. and Jeremiah continued to exhibit violent and threatening behavior. The Respondents repeatedly refused to submit to random drug and alcohol tests. Shante was arrested for a weapons charge.

Soon after, the Jewish Child Care Agency (hereinafter "JCCA" ) was assigned as a new foster care agency to work with the family. The Respondents started truly complying with services in October 2009 and appeared to enjoy a good working relationship with the JCCA caseworkers. By November 2009, the Respondents were compliant and, on support of all parties, the Undersigned approved a trial discharge for the five children in care. Supervision was subsequently terminated for the children Shanice and Shante as they each reached their [*6]eighteenth birthdays.

The Last Removal

In April 2010, after several months of compliance and what appeared to be a successful trial discharge, the Respondents once again began to violate court orders and place their children at risk. In June 2010, ACS removed all five children from the home, asserting that the trial discharge had failed. ACS and JCCA cited the failure of the Respondents to comply with random toxicology tests although the agency provided referrals and transportation costs to the Respondents twice per month. Per the agency, neither Respondent had submitted a urine sample since February 2010. In addition, because the Respondents were not bringing Larry Jr. and Jeremiah to their scheduled mental health appointments at Kings County Hospital, both children were discharged from that service. Though the parents claimed they would enroll the children in a neighborhood-based mental health service, they failed to do so and refused assistance from the agency. Further, the Respondents failed to attend educational meetings regarding Larry Jr. and Jeremiah. In one instance, though an appointment had been scheduled with the Department of Education for a June 2, 2010 school placement meeting, Jeremiah reported that the Respondents took him and his brother swimming instead.

Such failings by the Respondents were violations of the trial discharge conditions ordered by the Undersigned in November 2009, mainly that the Respondents cooperate with ACS and all referrals, that they submit to random drug and alcohol tests and test negative, that they attend family therapy, that they permit random home visits, that they ensure that the children attend school regularly and on time and that they ensure that the children attend all of their mental health and medical appointments.

Upon this most recent removal in June 2010, Larry Jr. and Jeremiah were taken to a psychiatric facility because they each exhibited threatening and violent behavior. The children became very aggressive and threatened to hurt themselves and others, and the attending psychiatrist at Elmhurst Hospital admitted both boys. Neither Respondent came to the hospital for their sons.

Due to the failure of the Respondents to comply with random drug and alcohol tests, the Undersigned ordered them to submit to such tests in court. Larry tested positive for alcohol in June 2010, both Sonia and Larry tested positive for alcohol in July 2010 and Larry tested positive again for alcohol in August 2010. On August 16, 2010, both Respondents provided samples that contained abnormal specific gravity, indicating the adulteration of their urine.

Since the return of the five children to foster care, the Respondents have missed some visits. Each missed visit causes Larry Jr. and Jeremiah to become aggressive and upset. In particular, an agency visit scheduled on July 28, 2010 from 12:00 pm - 2:00 pm became disastrous when all five siblings attended but the Respondents failed to appear. When finally reached by phone towards the end of the time scheduled for the visit, Sonia stated that she had overslept. All five children became upset and aggressive, with Larry Jr. trying to destroy the furniture in the agency visiting room. Later, as Larry Jr. was being driven back to his foster home, he tried to jump out of the car. He was subsequently taken to the hospital for a psychiatric evaluation. When reached by phone later that day, Sonia refused to go to the hospital to meet with the doctors. The next day, Larry Jr. was released but subsequently readmitted, and still [*7]neither parent arrived to help their son.

The Current Status

During the last few month, Sonia and Larry have failed to comply with random drug and alcohol testing. They cannot apparently account for approximately $4000 of a furniture grant previously provided to them by ACS. ACS alleges that the Respondents had not purchased any furniture and could not account for the money they had received. On the other hand, both parents did submit to court-ordered mental health evaluations. Finally, the Respondents submitted to an in-court drug and alcohol test in November 2010 and tested negative.

DISCUSSION

Due to the continuing placement of Larice, Marilyn, Sonia, Jeremiah and Larry Jr. in foster care, coupled with the family's ten-year child protective history, the Undersigned directs the filing of termination of parental rights petitions against Sonia and Larry so that a determination can be made as to whether they have permanently neglected the children, as defined by the New York Social Services Law.

New York Social Services Law section 384-b, entitled "Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights" begins with a statement of the Legislature's intent. The statute reads that, if consistent with the health and safety of a child, that child should grow up in a normal family life in a permanent home. The Legislature stated that it is generally the most desirable for the child to remain with or be returned to their birth parents and that parents are entitled to raise their own children, unless by doing so, the best interests of the children would be endangered. In furtherance of this goal, the Legislature determined that the State's primary obligation was to provide services to the family so that the destruction of the family could be prevented. The Legislature recognized, however, that if the birth parent could not or would not provide a normal family home for their child, and that, where continued foster care was not an appropriate plan, that a permanent alternative home for the child must be sought. Further, the Legislature recognized that children languishing in foster care could suffer harm to their growth and development. As a result, our lawmakers enacted this and related statutes to achieve timely permanency for a child, either through reunification with a birth parent or through the termination of that parent's rights so that the child can be freed for adoption. (Soc. Serv. Law § 384-b (1)).

A termination of parental rights proceeding (hereinafter "TPR" ) pursuant to the Social Services Law typically begins with the filing of a petition by the foster care agency in whose custody the child is placed. Under certain circumstances, a foster parent, the attorney for the [*8]child, or a relative with whom the child is placed may also file such petition. (Soc. Serv. Law § 384-b (3)(b)).

The court, on its own motion, may also order the filing of a termination of parental rights petition. FCA section 1089, entitled "Permanency hearings" states that notwithstanding the permanency goal approved for a child upon the conclusion of a permanency hearing, the court may cause the filing of a TPR petition:

Where the court finds reasonable cause to believe that grounds for termination of parental rights exist, the court may direct the local social services district or other agency to institute a proceeding to legally free the child for adoption pursuant to section three hundred eighty-four-b of the social services law. Upon a failure by such agency to institute such proceeding within ninety days after entry of such order, the court shall permit the foster parent or parents in whose home the child resides to institute such a proceeding unless the local social services district or other agency, for good cause shown and upon due notice to all the parties to the proceeding, has obtained a modification or extension of such order, or unless the court has reasonable cause to believe that such foster parent or parents would not obtain approval of their petition to adopt the child in a subsequent adoption proceeding. (Fam. Ct. Act § 1089(d)(2)(viii)(E)).

In addition, at the dispositional phase of a neglect proceeding, in cases where a child is placed outside the home, the court may order the filing of a TPR: In addition to or in lieu of an order of placement made pursuant to subdivision (b) of this section, the court may make an order directing a social services official or other duly authorized agency to institute a proceeding to legally free the child for adoption, if the court finds reasonable cause to believe that grounds therefor exist. Upon a failure by such official or agency to institute such a proceeding within ninety days after entry of such order, the court shall permit the foster parent or parents in whose home the child resides to institute such a proceeding unless the social services official or other duly authorized agency caring for the child, for good cause shown and upon due notice to all parties to the proceeding, has obtained a modification or extension of such order, or unless the court has reasonable cause to believe that such foster parent or parents would not obtain approval of their petition to adopt the children in a subsequent adoption proceeding. (Fam. Ct. Act § 1055(d)).

Of the several causes of action for a termination of parental rights delineated in the Social Services Law, the only cause of action possibly applicable to the conduct of Sonia and Larry is permanent neglect. A permanently neglected child is defined, in pertinent part, as follows: For the purposes of this section, "permanently neglected child" shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period [*9]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 when such efforts will not be detrimental to the best interests of the child. (Soc. Serv. Law § 384-b(7)(a)).

To plan for the future of the child is further defined as taking ...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. (Soc. Serv. Law § 384-b(7)(c)).

A finding of permanent neglect must be made by clear and convincing proof, the highest burden of proof in New York child protective proceedings. Such finding cannot be made without a determination that the child protective agency serving as the child's custodian has made diligent efforts to encourage and strengthen the parent and child relationship. Diligent efforts is defined, in pertinent part, 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...; (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;...(Soc. Serv. Law § 384-b (7)(f)).

The New York State Court of Appeals affirmed Family Court's authority to direct the Commissioner of Social Services to file a petition to terminate parental rights when the court finds that such a filing is in the best interests of the child. (Matter of Dale P., 84 NY2d 72, 638 N.E.2d 506, 614 N.Y.S.2d 967 [1994]). In Dale P., the child had been abandoned by his drug-addicted mother at birth. Dale P.'s father was unknown. The child was cared for and ultimately directly placed, pursuant to FCA section 1055(a)(ii) with Mary, a family friend. The Family Court continued the order of direct placement for several years but also, on its own motion, ordered the Commissioner of Social Services to institute a TPR so that Mary could begin an [*10]adoption proceeding. The Court of Appeals held that Family Court properly exercised its authority when it directed the Commissioner to file a TPR petition, and that it mattered not whether the child was in foster care or, as here, in Mary's care pursuant to a direct placement. The Court of Appeals reasoned: As part of its continuing duties to attend to the care of this abandoned child, and to extend placement, the Family Court properly ordered the Commissioner to file for termination of parental rights on behalf of Dale P., a child directly placed with a "suitable person" Mary H. The Family Court is empowered to guard the welfare of the child and, as the Law Guardian has demonstrated, Family Court, in this instance, is the primary care-director, charged with ongoing responsibility for the child...Since the Commissioner did not initiate on her own the termination of parental rights, the Family Court also properly relied on Family Court Act §1055(d) as a complementary, reinforcing source of its power to direct the Commissioner to proceed with the predicate step under Social Services Law § 384-b(4)(b) toward a permanent placement. (Dale P., 84 NY2d at 80, 81, 638 N.E.2d at 510, 614 N.Y.S.2d at 971).

Unlike the biological parent in Dale P., Sonia and Larry have not abandoned Marilyn, Larice, Sonia, Jeremiah and Larry Jr. The parents have not disappeared from their children's lives but have instead failed to remain drug and alcohol free, failed to consistently visit with the children in foster care, failed to attend medical, educational and mental health appointments, failed to maintain stable housing and failed to recognize the distress they have caused their offspring by such conduct over so many years. ACS and its contract agencies have continuously offered services to the Respondents, and, for their part, Sonia and Larry have at times accepted such services and demonstrated their ability to comply. Permanency, however, will never be achieved for these children if they continue to languish in foster care and if releases or trial discharges to their parents continue to fail. The Legislature's stated intent, shared by the Family Court, that the subject children should grow up with a normal family life in a permanent home, becomes more difficult to achieve each day the children remain in foster care, each time they are moved to a new foster home and each time the Respondents fail to comply with court mandates.

CONCLUSION

For these reasons, the Administration for Children's Services is directed to file termination of parental rights petitions against Sonia and Larry regarding Larice, Marilyn, Sonia, Larry Jr. and Jeremiah. The agency is ordered to continue providing diligent efforts to both Respondents during the pendency of these proceedings. [*11]

So Ordered.

Notify parties and attorneys for the children.

ENTER:

_________________________

Hon. Karen I. Lupuloff

Judge of the Family Court Footnotes

Footnote 1:While the record is unclear as to the docket under which Jeremiah was remanded or placed, it is clear that he too was removed from the home and placed in foster care with his six siblings.