Matter of Anna Z. (Guan Yao Z.)

[*1] Matter of Anna Z. (Guan Yao Z.) 2013 NY Slip Op 51608(U) Decided on September 26, 2013 Family Court, Franklin County Main, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2013
Family Court, Franklin County

In the Matter of the Commitment of Guardianship and Custody pursuant to § 384-b of the Social Services Law of Anna Z., A Child under Eighteen Years, Alleged to be a Permanently Neglected Child of GUAN YAO Z., Respondent. In the Matter of the Commitment of Guardianship and Custody pursuant to § 384-b of the Social Services Law of MIAN TAO Z., A Child under Eighteen Years, Alleged to be a Permanently Neglected Child of GUAN YAO Z., Respondent. In the Matter of the Commitment of Guardianship and Custody pursuant to § 384-b of the Social Services Law of MIAN JING Z., A Child under Eighteen Years, Alleged to be Permanently Neglected Child of GUAN YAO Z., Respondent.



B-00881-12



Counsel:

DAVID E. LaPLANT, ESQ.

Department of Social Services

Attorney for Petitioner

FRANKLIN COUNTY COURTHOUSE

355 West Main Street

Malone, New York 12953

(518) 481-1589

LORELEI B. SMITH MILLER, ESQ.

Franklin County Conflict Defender

Attorney for Respondent

Franklin County Courthouse

355 West Main Street

Malone, New York 12953

(518) 481-1593

VIRGINIA J. MORROW, ESQ.

Attorney for Child, Mian Tao Z.

50 Kiwassa Road

Saranac Lake, New York 12983

(518) 891-7003

TAMMY L. GORDON, ESQ.

Attorney for Children, Anna Z. and Mian Jing Z.

436 East Main Street

Malone, New York 12953

(518) 481-1950

Robert G. Main Jr., J.

Petitions filed under § 384-b of the Social Services Law and article 6, part 1, of the Family Court Act, request that the parental rights of Respondent, Guan Yao Z. (sometimes hereinafter referred to as "the father") be terminated in relation to his three children, Anna Z. (born December 5, [*2]1998), Mian Tao Z. (born June 1, 1996), and Mian Jing Z. (born November 27, 1997).[FN1]

On the 7th day of September, 2012, Patricia Barrett, Foster Care Supervisor for the Franklin County Department of Social Services (sometimes hereinafter referred to as "the Department" or "DSS"), filed with the Court three separate petitions requesting that the father's parental rights be terminated on the basis that the subject children have been in the custody and care of an authorized agency for a continuous period of one year and for more than fifteen out of the most recent twenty-two months (see Social Services Law § 384-b [7][a]).

I. Introduction

The termination grounds asserted in each petition were two-fold: that the subject children have been permanently neglected and that the father suffers from mental illness (see Social Services Law § 384-b [4][c], [d]).

A summons was issued and duly served upon the father directing him to initially appear before the Court on December 4, 2012, to show cause why an order should not be entered committing the guardianship and custody of the subject children to the Department. On the return date, the father entered a denial of the allegations contained in the petitions, and the proceedings were scheduled for a consolidated fact-finding hearing before this Court.

Due to the father's inability to speak fluent English, he required a Mandarin Chinese interpreter during all court proceedings (see 22 NYCRR 217.1 [a]). To secure a Mandarin interpreter, the Court sought the assistance of the Unified Court System's Office of Court Interpreting Services. That office was able to provide Mandarin interpreters through the use of electronic video-conferencing equipment. The Court would be remiss not to commend Way Moy, Derek Wan, and Kin Cheung for the interpretive services they provided during the course of the fact-finding hearing; for their willingness to be flexible and accommodating; and for the assistance they provided to [*3]respondent's counsel during recesses and adjournments of the proceedings.

A consolidated fact-finding hearing on the Department's three termination petitions was held over a seven day period. The hearing was initially commenced on March 25, 2013, and continued through March 28, 2013. The hearing was reconvened on May 2, 2013, and May 3, 2013, and was completed on June 20, 2013.

Testimony was garnered from multiple witnesses including the Department's Foster Care Supervisor, L. Vicki Smith; Senior Case Worker Bianca Rodriguez; Caseworker Jeremiah Pond; foster parent, Lisa Martin; visitation supervisors, Mary Lenz, Loren Lenz, and Patrick Burke; and the respondent father. The Department also submitted numerous documentary exhibits which were received in evidence and which included the father's mental health records, parent mentor reports, supervised visitation records, and casework progress notes.

Moreover, at the request of the Department's counsel, the Court has taken judicial notice of all orders it has issued in prior article 10 neglect proceedings involving the father and the subject children (see Matter of Anjoulic J., 18 AD3d 984, 986 [3d Dept. 2005]). It is well settled that it is, "within the court's power to take such notice of its own prior proceedings" (Matter of Terrance L., 276 AD2d 699, 700 [2d Dept. 2000], lv denied, 96 NY2d 703 [2001], cert denied, 533 US 918 [2001]).

II. Procedural History and Notice Taken

A review of such prior orders reveals that the Department's prolonged dealings with the father date back to at least April, 2004, when a neglect petition was filed alleging that the father had left his 6 year old Mian Jing and his 5 year old Anna home alone without adult supervision while he and Tao, his older son, went shopping. Said petition resulted in the Court's granting an adjournment in contemplation of dismissal, supported by an order of protection, which placed the father under DSS supervision for a period of twelve (12) months.

A second set of neglect petitions was filed by the Department in January, 2006. In this instance, it was alleged that the father had neglected his children by failing to provide them with an adequate amount of food and failing to seek medical attention when Mian Jing, who suffers from cerebral palsy, was experiencing labored breathing. A temporary order of protection was issued, and the second set of petitions was scheduled for a consolidated fact finding hearing. [*4]

In April, 2006, less than four months after the Department's filing of its second set of petitions, a third set of neglect petitions was filed, alleging that the father had violated the terms of the temporary order of protection by once again leaving his two youngest children alone and unsupervised. In this instance, it was alleged that the father had left the children in his car, parked at a grocery store parking lot, while the father went inside to shop. The petitions allege that one of the Department's caseworkers came upon the children and that she observed the children to be alone and unsupervised. The caseworker further averred that the children appeared to be very cold and that frost had begun to form on the inside of the automobile's windows as the vehicle's heating system had not been left running.

The third set of petitions also contained allegations that the father had once again failed to provide his children with proper medical attention. In particular, it was alleged that the father rescheduled an appointment to have Mian Jing's tonsils removed, as the date for which that procedure was scheduled was in conflict with the date of the father's fair hearing regarding sanctions on his public assistance and food stamps cases. It was alleged that the father rescheduled Mian Jing's tonsillectomy, despite being informed by the Department of the medical importance of the surgery.

The Department's third set of petitions further alleged that the father had failed to take Tao to a scheduled appointment with an ear, nose, and throat specialist located in Plattsburgh, New York, in order to address the ear pain he was suffering in relation to the tubes which had been inserted in Tao's ear after he had his tonsils and adenoids removed in June, 2004. The petitions alleged that Tao was to have follow-up appointments on the surgeries every six months and that it had been approximately 14 months since his last follow-up with the ear, nose, and throat specialist.

In May, 2006, a settlement was reached between the Department and the father in which he would enter admissions and consents to findings of neglect on both sets of petitions. As a result of the findings of neglect, all three children were placed in the custody of the Department until October, 2006, when the children's first permanency hearings were scheduled. An order of protection was issued directing the father to fully cooperate with the Department. In addition, he also received a 90-day suspended sentence with regard to his admission on violation allegations. [*5]

The permanency hearing conducted in October, 2006, resulted in a trial discharge which began the following month. Pursuant to the terms of the discharge, the children were placed with their father, subject to the Department's supervision, until the next permanency hearing in April, 2007. The subject children were finally discharged to their father on April 6, 2007, with orders of supervision and protection in place in favor of the children.

The children remained placed with their father for the remainder of 2007 and into the summer of 2008. The record reflects that in July, 2008, the children were briefly removed from the father's custody and subsequently returned to him later that month. However, shortly thereafter, the Department removed the children on an emergency basis, and new neglect petitions were filed with the Court.

On October 6, 2008, an order of fact finding and disposition, in relation to the most recent petitions, was entered which found the father to have neglected his children such that their placement continued with the Department. Biannual permanency hearings have been held on March 24, 2009; October 22, 2009; February 23, 2010; August 24, 2010; March 1, 2011; August 5, 2011; March 9, 2012; August 28, 2012; and February 19, 2013. As a result of said hearings, the children have been in foster care for a continuous period of time since August, 2008.

III. Evidentiary Findings

The record reflects that the Department has been providing the father with services as far back as May, 2006, when the children first came into the Department's care. The undisputed evidence submitted at the fact-finding hearing indicates that the Department has made considerable efforts at reunification through intensive caseworker interaction and by scheduling frequent visitation between the father and the subject children. To assist the father in becoming self-sufficient, the Department has provided the father with access to mental health services, language and vocational programs, and numerous training sessions with a parent mentor. DSS also sought to encourage the father's relationship with his children by enrolling the children in a Chinese cultural immersion program.

A. Mental Health Services

According to the testimony of Foster Care Supervisor L. Vicki Smith, the Department first provided the father with the [*6]assistance of mental health services in January, 2009, when the father received a mental health evaluation by Clinical Coordinator David Munn. Given the father's inability to speak fluent English, a Mandarin interpreter was used to conduct the father's initial mental health evaluation.

Petitioner's Exhibit "2", which was entered in evidence without objection, is a certified copy of the father's mental health records maintained by North Star Behavioral Health Services. The initial entry is the consultation form prepared by Clinical Coordinator Munn after his initial meeting with the father. According to the consultation form, the father's evaluation was "awkward", and no clinical impression was made due to cultural differences. Accordingly, it was recommended that the father be evaluated by a Mandarin-speaking psychiatrist through the use of Columbia University's tele-psychiatry program.

The father's initial evaluation also recommended that he continue to take his prescribed medication for depression and suggested that he be prescribed a low dose anti-psychotic medication. The consultation form further recommended that the father consult with a pain management specialist regarding his chronic muscle pain, that he continue to participate in educational and vocational programs, and that he receive individualized therapy and case management.

The record reflects that the father's initial mental health evaluation was completed in April, 2009, by Dr. Wendy Wong via a tele-psychiatry conference. Dr. Wong was able to complete the evaluation in Mandarin and found that the father did not suffer from any type of hallucinations, psychosis, or any obvious signs of thought disorder. She further indicated that the father's lack of formal education was the primary cause of his lower level of intellectual functioning. Petitioner's Exhibit "1" indicates that Dr. Wong specifically noted, "Mr. Z.'s feeling of victimization and entitlement, as well as his guardedness, paranoia, irritability and sadness (the latter secondary to separation from his children)". Dr. Wong ultimately recommended that the father undergo further intellectual and neurological evaluations to determine if he suffered from some type of brain disorder.

To that end, the Department procured the services of Dr. Michael J. Small, Ph.D., to conduct a neurological evaluation of the father and to recommend any necessary treatment. At the fact-finding hearing, the father's Neuropsychological Evaluation report which was prepared by Dr. Small was received into evidence without objection. [*7]

According to the evaluation, the father's psychiatric profile reflected that he was delusional and suffered from paranoia and persecutory thinking. The intelligence testing revealed that the father functioned on the low average range of intellectual ability and was inefficient and slow at processing information. In addition, Dr. Small noted that the father's wide range of test scores on the various intelligence tests reflected "the possibility of inattentiveness, distraction to internal stimuli, or waxing and waning motivation".

Dr. Small concluded that the father's most serious deficiency related to his executive functioning which was reflected in the father's "interpersonal viscosity, perseverative focus to detail versus inability to see the big picture (i.e., forest for the trees'), cognitive rigidity and inflexibility, poor monitoring and control of emotions and behavior". Dr. Small further noted that the deficiencies in the father's executive functioning presented themselves in his lack of awareness of the seriousness and extent of his legal situation, his inability to perceive his shortcomings, and his "assumption of a life style characterized by dependency and entitlement."

Dr. Small opined that the deficiencies in the father's executive functioning, taken in concert with his psychiatric condition, were consistent with disruption with the frontal lobes of his brain. Accordingly, Dr. Small indicated that a MRI would have to be conducted on the father to fully diagnose the nature and extent of any possible brain damage.

According to the report's recommendations, as of September, 2009, Dr. Small had found little to indicate that the father was prepared to resume full, unsupervised parental responsibilities. As a result thereof, the doctor recommended that the father remain subject to the Court's Order of Supervision and that the children remain in the custody of the Department. Dr. Small further recommended that, in order for the father to achieve reunification with his children, he would need to demonstrate that he is able to sustain independent functioning, obtain gainful employment, and come to a meaningful resolution of his emotional and behavioral issues.

To achieve these goals, Dr. Small suggested that the father continue to participate in the One Work Source Program, GED preparation, English language classes, parent effectiveness training, employment preparation, individual counseling, psychiatric counseling to explore the benefits of pharmacological interventions, a brain MRI, and genetic testing in order to rule out chromosomal anomalies. Testimony at the fact-finding hearing [*8]revealed that the Department has essentially utilized Dr. Small's recommendations as a guide in developing its permanency plans to reunify the father with the subject children.

In following the neuropsychologist's recommendations as they relate to the father's mental health issues, in April, 2010, the Department directed that the father partake in individual therapy with North Star Behavioral Health Services with the assistance of a Mandarin interpreter. Testimony indicated that the Department monitored the father's progress at North Star.

It was asserted that the father's therapist reported to the Department that he was argumentative and wasted most of the time in a session refuting any ideas or suggestions that were conveyed to him by the therapist. It was further reported that the father minimally engaged in his therapy sessions and did not work toward his goals. The record reflects that on September 22, 2010, the father was unsuccessfully discharged from North Star Behavioral Health Services due to his failure to comply with any recommendations that were made and to his inability to present any areas in which he was willing to work to improve.

B. Language Training

To address the father's lack of fluency in the English language, the Department utilized various interpretative services at a majority of the father's meetings with caseworkers. This was done to ensure that the father fully understood the goals that he needed to achieve in order to be re-unified with his children (see Matter of Shaquanna C., 184 AD2d 509, 510 [2d Dept. 1992]). Additionally, the Department referred the father to the Literacy Volunteers program to assist him in learning how to read and write the English language.

The record further reflects that in August, 2011, the Department also purchased an educational software program entitled Rosetta Stone. This interactive software program, which cost the Department approximately $600, teaches its user a given language primarily through the use of image-word association. Testimony at the fact-finding hearing revealed that the software was made available to the father everyday that the Franklin County Courthouse was open for business, from 10:00 a.m. until 2:00 p.m. Although the software program is still currently available for the father's use, he abruptly stopped using the software in December, 2011.

When questioned as to why he stopped utilizing the software, the father indicated that no appointments were ever [*9]scheduled for him by the Department. In doing so, the father specifically noted that, if arrangements had been made, he would have gone but that, as nothing was scheduled on his behalf, he no longer went to DSS offices to use the software.

Foster Care Supervisor Smith testified that the father chose not to take advantage of the Rosetta Stone software or the Literacy Volunteers program as he believed that the Department was obligated to retain the services of a private tutor on his behalf. Ms. Smith testified that the Department had informed the father that, if he wanted a private tutor, he could retain one at his own expense. She further indicated that, to her knowledge, the father never hired his own personal tutor yet he still did not utilize the language services available to him for a prolonged period of time. According to Supervisor Smith's testimony, it was not until May, 2012, that the father returned to the Literacy Volunteers in an effort to seek help in filling out forms for food stamps and medicaid.

In respondent's Closing Argument and Proposed Findings of Fact and Conclusions of Law, which were filed with the Court on July 19, 2013, the father's attorney asserts that "[i]n a word, the Department has not been diligent" in its efforts to assist the father in overcoming his language barrier.

However, during his cross-examination by Tammy Gordon, Esq., attorney for two of the children [FN2], the father answered multiple questions in English, prior to the interpreter being able to translate them into his native Mandarin. Several of these questions were lengthy, compound inquiries which clearly required a functional understanding of English.

The Court readily acknowledges that the father may not have a masterful grasp of the many nuances and idioms of the English language or of certain legal terminology. However, the record clearly reflects that the father has a working understanding of the English language, even to the point of being able to point out when a remote interpreter was not appropriately translating and of answering questions before the translation had begun. To claim that the Departments efforts were not diligent, under all the circumstances, is dubious, at best, and nearly frivolous.

[*10]

C. Chinese Immersion School

The Department also endeavored to raise the children's awareness of their own cultural background by enrolling the children in a school that specialized in Chinese language and culture. The so-called "Chinese Immersion School" was located in Latham, New York, located approximately three hours south of Malone. According to testimony at the fact finding, Franklin County paid for the children's tuition for the program which they attended once every two (2) weeks beginning in September of 2010. The Department encouraged the father to attend the program with his children and, yet, he only chose to attend on one occasion in 2010.

Based upon the father's failure to take part in the Chinese immersion program, the Department requested that an order be issued compelling his attendance. Accordingly, on August 5, 2011, this Court issued a Permanency Hearing Order which directed that the father participate in and attend the immersion program with his children and that such attendance would constitute his weekly visitation period. The record reflects that, upon the issuance of that permanency order, the father did start to accompany his children to Latham, New York, in order to take part in the immersion program. However, testimony at the fact finding hearing revealed that, while the father did attend the program, his participation was limited to his mere physical presence as his mind and spirit were anything but engaged in the program.

The Department called Patrick Burke to testify as to the father's interaction with the children on the trips to and from the school. According to his testimony, Mr. Burke served as a visitation supervisor and provided the father and the subject children with transport to and from the Chinese Immersion School. In addition to his testimony, Mr. Burke's supervised visitation notes were admitted into evidence without objection.

According to Mr. Burke's testimony, the father had very little interaction with the children during the car ride to and from the school. The trips would usually proceed in the same fashion. Mr. Burke would pick up the father at his apartment and the children at their foster homes. The father would greet Mr. Burke when he was initially picked up and say little else for the remainder of the trip to either his children or Mr. Burke. Mr. Burke's visitation notes indicate that the father rarely took advantage of the drive time to and from the school to interact with his children. Instead, the father usually chose to sleep for most of their journey. [*11]

Of particular note is Mr. Burke's visitation report for the trip that occurred on October 14, 2012. According to his summary, the school's principal met with the father and Mr. Burke. The principal informed them that Franklin County had requested a discount on the children's tuition as they only attended the program twice per month. The principal agreed to reduce the tuition and had the children fill out participant forms. The father was also given permission to attend the classroom sessions. However, he was not permitted to take part in the classes on the fourteenth, as he refused to fill out the necessary paperwork. According to Mr. Burke's notes, the father and the principal engaged in a heated discussion in Chinese. Afterward, the principal informed Mr. Burke that the father did not want to fill out the participant forms unless he was under strict court order to do so. As such, the father was not allowed in the classroom. Rather, he stayed in the school cafeteria during the sessions.

D. Parent Effectiveness Training

In his evaluation report, Dr. Small identified several risk factors regarding the father's parenting technique. Those included poor parental supervision, poor family attachment, and poor discipline practices. In an effort to help the father become a more effective and competent parent, the Department employed the services of a parent mentor to assist him in learning how to properly parent his children. To that end, parent mentor, Mary Lentz, from the Mentor Forward agency was assigned as the father's mentor. Moreover, to ensure that the parent mentor program was success, the Department retained the services of Theresa Chan, a Mandarin interpreter, who accompanied the mentor during the father's sessions.

According to Ms. Lentz's testimony, the parent-mentor program was developed to go into a parent's household and to develop practical skills such as care-giving, cooking, cleaning, and parental nurturing. Ms. Lentz further testified that, when the Department initially sought out her services, she met with the father and caseworkers to develop a plan. This plan included the goals of unpacking and making the father's apartment a comfortable living environment. The mentor also sought to teach the father how to properly interact and communicate with his children.

Ms. Lentz testified that she mentored the father from February, 2010, until December, 2010, when he was discharged from the program for lack of progress. During the ten (10) month period in which the father participated in the parent mentor [*12]program, Ms. Lentz indicated that she met with the father on almost a weekly basis. Most of their meetings occurred during the father's supervised visitations with the children.

After each mentoring session, Ms. Lentz prepared a summary report of what transpired. These reports were entered into evidence, without objection, as Petitioner's Exhibit "3". The Court's review of said exhibit corroborates Ms. Lentz's testimony that, on the whole, her efforts resulted in little, if any, improvement.

There are multiple entries in which Ms. Lentz reports that she had to repeatedly encourage the father to interact with the children in one way or another. She also had to encourage him, on multiple occasions, to prepare meals for the children. Ms. Lentz testified that her suggestions were usually met with resistence from the father, particularly with regard to having to provide food for his children. Ms. Lentz testified that the father would consistently inform her that he should not have to provide food for his children and that it was the duty of the Department or the children's foster parents to provide meals for the children.

Ms. Lentz further testified that the goal of making the father's apartment an appropriate home environment was also never achieved. At the outset of the mentor program in March, 2010, it was suggested to the father that he should unpack his belongings and obtain proper bedding for the children's bedrooms. Ms. Lentz's reports, contained in Petitioner's Exhibit "3", indicate that she encouraged the father to do so on multiple occasions, but he refused as he was unsatisfied with his current apartment and wanted assistance in finding a new one. Ms. Lentz testified that the father still had not finished unpacking his belongings by the time he was discharged from the mentor program in December, 2010.

It is within reason to accept that these otherwise obvious suggestions were necessary at the outset of the father's engagement in the parent mentor program. However, the record reflects that no progress was made in the father's ability or willingness to conduct these mundane tasks on his own accord in the absence of prodding by his mentor. According to Ms. Lentz's testimony, on December 2, 2010, the father was discharged from the Parent Forward program based upon his lack of progress after having been engaged in nine (9) months of intense parent mentor services.

E. Housing Assistance[*13]

The record also reflects that the Department made a concerted effort to assist the father in finding suitable housing. Caseworker Smith testified at the fact-finding that the father had been evicted from his apartment in the fall of 2008 and that he remained homeless until January, 2009. She further asserted that the father lived with his brother for approximately one month in early 2009 and that DSS subsequently rented the father a room at a local motel until a suitable apartment was found for him.

Ms. Smith further testified that DSS caseworkers spent a significant amount of time assisting the father in finding an apartment. She recalled that the apartment search proved difficult as the father found at least seven (7) separate apartments unacceptable. He ultimately chose a one (1) bedroom apartment located at 59 Pearl Street in the Village of Malone. The father only resided in the one bedroom apartment for a brief period of time as, shortly thereafter, the Department found a four (4) bedroom apartment which was also located on Pearl Street in Malone. The Department saw the father's move into the larger apartment as a positive one, as it provided the children with their own bedrooms, thereby providing a more suitable home environment. Ms. Smith testified that, in both instances, the Department paid for the father's moving expenses.

The record reflects that in December, 2010, the father moved out of his four bedroom apartment on Pearl Street and into a smaller, two bedroom apartment. The father did so despite the Department's recommendation that he needed at least three (3) bedrooms to adequately accommodate himself and his children. The father remained in his two bedroom apartment until March, 2012, when he found a larger apartment in the same complex. Testimony at the fact-finding hearing indicated that he has remained at said apartment since then.

F. Financial Dependence upon the Department

An additional goal recommended by Dr. Small's evaluation was that the father demonstrate an ability to sustain independent functioning including management of his monthly income and expenses. Testimony revealed that the father had considerable difficulty in managing his finances such that in February, 2010, the Department was assigned as his representative payee for his SSI benefits.

The Department utilizes respondent's monthly SSI payments to cover the father's basic needs, including his rent, [*14]car payment, insurance, utilities, cell phone, prescription medications, groceries, and child support. As representative payee, DSS has also paid off the father's credit cards which had gone into collection, paid his storage fees and moving expenses, and paid court fees and fines as well as his motor vehicle registration. The Department also provides the father with a weekly allowance of $50.00 to spend as he sees fit. Nevertheless, the record contains ample evidence that the father would make repeated requests of his caseworker for the Department's dispersal of more money, claiming that he had no money to cover his day-to-day expenses.

IV. Conclusions of Law

The Department has satisfied the provisions of Family Court Act § 614 of the Family Court Act by appropriately establishing that each of the subject children, being under eighteen years of age, has been placed in the care of the Franklin County Department of Social Services, an authorized agency, and that, despite the Department's diligent efforts at reunification, the children have remained in the care of the Department for a period of substantially more than one year and for at least fifteen out of the most recent twenty-two month period (FCA § 614 [1][a], [b], [c] and [d]). Moreover, the Department has further proven that the father's neglect of the subject children has been on such a continuous, consistent, and permanent basis that the best interests of the children warrant that their custody and care be committed to the Department (see Family Court Act § 614 [1][e]).

A. Statutory Construct and Relevant Precedent

It should be initially noted that, when an authorized agency removes a child from the custody of his or her parent, the primary societal goal and "overarching consideration" is the reunification of the parent and child (see Matter of Dale P., 84 NY2d 72, 77 [1994]). To be sure, the child's return to the parent remains the goal until it becomes evident that the parent is unable or unwilling to correct the conditions that led to the child's removal (see Social Services Law § 384-b [1][a][ii]). Therefore, the termination of one's parental right only "becomes necessary and appropriate where a parent fails to demonstrate a willingness to work toward the goal of reunification, fails to comply with the petitioner's recommendations or fails to develop an awareness of the child's basic needs or [*15]underlying reasons for placement in petitioner's care" (Matter of Kobe D., 97 AD3d 947, 948 [3d Dept 2012]).

The specific grounds upon which a termination proceeding may be brought are enumerated in Social Services Law

§ 384-b (4). In pertinent part, the statute provides for the following five grounds:

"(a) Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or (b) The parent ... abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court; or (c) The parent ... are presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed in the court; or (d) the child is a permanently neglected child; or (e) The parent ... severely or repeatedly abused such child" (Social Services Law § 384-b [4]).

As indicated, the Department commenced these termination proceedings on two (2) grounds: mental illness and permanent neglect (see Social Services Law § 384-b [4][c], [d]). However, on March 25, 2013, prior to the commencement of the fact finding hearing, the Department withdrew those portions of the petitions which related to the mental illness ground for termination.[FN3] As a result, the Department prosecuted the petitions alleging the father's permanent neglect as the sole basis for the relief requested.

It is well established that, in order to support a finding a permanent neglect under Social Services Law § 384-b, an authorized agency must show, by clear and convincing evidence, that, for the pertinent one year period, the parent either "(1) failed to substantially and continuously maintain contact with the child, or [*16]alternatively, (2) failed to 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" (Matter of Joseph ZZ, 245 AD2d 881, 883 [3d Dept 1997], lv denied, 91 NY2d 810 [1998]).

The definition of permanent neglect, as it is set forth Section 384-b (7)(a) of the Social Services Law, should be read in the disjunctive, as it is not necessary for the authorized agency to prove both a parental failure to maintain contact and a parental failure to plan. Proof by clear and convincing evidence that a parent failed to either maintain contact or failed to plan for at least a year is sufficient to sustain a finding of permanent neglect (see Matter of Scotty C., 154 AD2d 784, 786 [3d Dept 1989], lv denied, 75 NY2d 707 [1990]).

In the context of a finding of permanent neglect, a parent's ability to maintain contact with a child was initially measured by the so-called "flicker of interest" rule which had been embraced by the Court of Appeals in Matter of Susan W. v Talbot G., 34 NY2d 76 (1974). This standard provided that "[e]ven where the flame of parental interest is reduced to a flicker the courts may not properly intervene to dissolve the parentage" (Matter of Susan W., supra, 34 NY2d at 80). Accordingly, under the "flicker of interest" doctrine, parents could successfully defend against allegations of permanent neglect by a showing of minimal contact and interaction with their children. However, in 1975 the Legislature moved away from the "flicker of interest" standard by amending the pertinent sections of the Family Court Act, Domestic Relations Law, and Social Services Law (see L 1975, ch 704, as amended; see also Matter of Commissioner of Social Services, 84 Misc 2d 253, 256 [Fam Ct, Ulster County 1975]).

Today, the "flicker of interest" standard has been wholly superseded by statute, as the controlling provision of law now provides that "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" (Social Services Law § 384-b [7][b]). Moreover, "[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" (Id.). Accordingly, an authorized agency may still commence a termination of parental rights proceeding, upon the ground of permanent neglect, for [*17]failure to maintain contact even when a parent maintains limited or ineffectual contact with their child.

In the alternative, a finding of permanent neglect can also be made based upon a parent's failure to plan. To that end, the Social Services Law provides that

" 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" Social Services Law § 384-b [7][c]).

Accordingly, "[i]n a proceeding to terminate parental rights based on permanent neglect the presentment agency must establish, as a threshold matter, that it exerted diligent efforts to encourage and strengthen the parental relationship" (Matter of Liam Francis P., 26 AD3d 385, 386 [2d Dept 2006]). In this regard, the authorized agency is obliged to not only assist in identifying the problems facing the parent, it must also "make affirmative, repeated and meaningful efforts to assist' her in overcoming them, taking into account respondent's mental acuity when formulating and implementing the plans" (internal citation omitted) (Matter of Richard "W", 265 AD2d 685, 687 [3d Dept 1999]).

An agency fulfills its obligation to conduct diligent efforts at reunification, "when it encourages a meaningful relationship between the parent and child by offering appropriate services, such as counseling and treatment opportunities, arranging supervised visitation and creating a service plan to move towards unification, and encourages the parent's participation"

therein (In re James X., 37 AD3d 1003, 1005-1006 [3d Dept 2007]; see also Social Services Law § 384-b [7][f]).

However, it is well settled that a parent's unwillingness to cooperate with, and participate in, such [*18]services does not negate an authorized agency's showing of diligent efforts (see Matter of Summer G., 93 AD3d 959, 961 [3d Dept 2012]). To the contrary, a parent's failure "to utilize available services or fully cooperate with the authorized agency are factors to be considered in assessing whether a parent has complied with the statutory requirements" (internal citations omitted) (Matter of Matthew YY, 274 AD2d 685, 686-687 [3d Dept 2000]). Ultimately, "it is incumbent upon a parent to take the initiative and plan for the child's future including removing any destructive tendencies from the parent's own life", in addition to planning for the child's housing, financial, educational and emotional needs (Matter of Joseph ZZ, supra, 245 AD2d at 883).

At the very least, the parent must take affirmative steps to remedy the conditions that led to the children's removal from their home. " This parental obligation necessarily includes addressing and overcoming [the] specific personal and familial problems which initially endangered or proved harmful to the child, and which may in the future endanger or possibly harm the child'" (internal citation omitted) (Matter of Zechariah J., 84 AD3d 1087, 1088 [2d Dept 2011]).

Therefore, a parent who is in danger of having parental rights terminated on the basis of permanent neglect must do more than merely participate in the services provided by the authorized agency. The parent must "[gain] insight into and an understanding of the problems and mak[e] progress toward changing behaviors that endanger the child" (Matter of Joseph ZZ, supra, 245 AD2d at 884).

Although an authorized agency is clearly obligated by law to make diligent efforts at parent-child reunification, such diligent efforts are "subject to the rule of reason" (Matter of O. Children, 128 AD2d 460, 464 [1st Dept 1995]). An agency "is not a guarantor of a parent's success in overcoming his or her predicaments.... A finding of permanent neglect is warranted despite participation in programs where there are relapses and the problem has not been ameliorated" (internal citations omitted) (Matter of Amanda R., 215 AD2d 220 [1st Dept 1995]).[*19]

In addition, when making its determination as to whether the parent has planned for the children's future, "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" (Social Services Law § 384-b [7][c]). "A parent's failure to make sufficient progress in addressing his or her mental illness can result in a finding that the parent has failed to make an adequate plan, [thereby] supporting a finding of permanent neglect" (Matter of Elijah "F", 280 AD2d 720, 721 [3d Dept 2001]).

B. Department's Diligent Efforts

In the instant proceedings, the Court's review of the collective record reveals that it is replete with documentary and testimonial evidence showing that the Franklin County Department of Social Services has satisfied its statutory obligation by making diligent efforts to strengthen and encourage the father's parental relationship with the subject children (see Social Services Law § 384-b [7][a]). The competent, material, and relevant evidence adduced at the fact-finding hearing constitutes more than clear and convincing proof that the Department has satisfied its burden of making diligent efforts at parent-child reunification.

Since the children's placement with the Department in August, 2008, the Department has provided the father with a plethora of services on a regular and consistent basis in an attempt to improve the father's ability to parent. While it appears that the father participated in most services offered, the record clearly reflects that his participation in such services was mediocre at best and resulted in little, if any, improvement in his ability to properly care for and parent the subject children (see Matter of Mary MM., 72 AD3d 1427, 1429 [3d Dept 2010]). Moreover, although the record clearly reflects that the father had frequent visitation with his children, "[c]onsistent visitation with the children does not preclude a finding of permanent neglect where, as here, there is a failure to plan for the children's future" (Matter of Jeremiah Emmanuel R., 101 AD3d 571, 572 [1st Dept. 2012]). Accordingly, a determination of permanent neglect is warranted.

Testimony at the fact finding hearing indicated that the Department prudently developed the father's service plan [*20]based upon the recommendations contained in an evaluation report prepared by a clinical neuropsychologist, Dr. Michael J. Small, Ph.D. As indicated in the Findings of Fact, in order to successfully return the subject children to their father, Dr. Small's ultimate recommendations were three-fold. The doctor advised that the father had to sustain independent functioning, obtain gainful employment, and come to a meaningful resolution of his emotional and behavioral issues. The Department made concerted and diligent efforts to implement these goals by providing the father with parent mentor training, vocational training through the One Work Source program, and language training via the Literacy Volunteers program and use of the Rosetta Stone language software.

To implement Dr. Small's mental health recommendations into the father's service plan, the Department endeavored to engage the father in mental health and substance abuse counseling at Northstar Behavioral Health Services. DSS also scheduled tele-psychiatry sessions for the father in his native language, through Columbia University, with Dr. Wendy Wong. The Department also recommended that the father go a pain management specialist to assist him in dealing with the muscle pain he suffered from as a result of a prior car accident. However, the father never followed through with the Department's recommendation. Testimony at trial also indicated that the Department also followed Dr. Small's recommendation that a MRI be performed to determine if the father suffered from brain injuries that could effect his ability to parent. The Court's review of the documentary evidence does not disclose whether any significant findings ensued.

In addition, the Department encouraged the father to establish stronger familial relationships. This was done by scheduling frequent supervised visits with his children and suggesting that he rekindle his relationship with his brother, the proprietor of a local Chinese food restaurant. In addition, the Department went to great lengths to bridge the cultural and linguistic gaps between the father and his children by enrolling the children in the Chinese Immersion school, located in Latham, New York. The record reflects that the Department's efforts in this regard were also met with little success, despite the fact that they offered the respondent the opportunity to spend significant time with his children en route to, while at, and on their way home from an activity that would strengthen a natural bond among them.

The Department attempted to aid the father in achieving sustained independent functioning, by directing him to partake in [*21]various educational and occupational training, which included GED efforts and vocational training with the One Work Source agency. The father took part in the One Work Source program. However, the testimony of Foster Care Supervisor L. Vicki Smith indicated that the father's involvement with One Work Source terminated in March, 2010, around the same time that the father learned he would be receiving SSI disability benefits.

Accordingly, the Department has more than demonstrated its diligent efforts at reunifying the subject children with their father. The respective records contain ample evidence of the Department's establishment of a reunification plan and how that plan was put into action. However, despite all the services and training made available to the father over a prolonged period of time, he made minimal strides in becoming an adequate father.

Ultimately, "[t]he petitioning agency is not required to guarantee that the parent succeed in overcoming his or her predicaments ... but, rather, the parent must assume a measure of initiative and responsibility" (quotation marks omitted) (Matter of Aiden J.W., 105 AD3d 1334, 1335 [4th Dept. 2013]). It is clear that did not occur in the instant proceedings.

The record is replete with testimony indicating that, since the children's most recent removal in August, 2008, the father's primary interaction with the Department has involved his attempts to obtain money from the Department as it serves as his representative payee for his SSI payments. Had the father endeavored to achieve the goals of his permanency plan with the same zeal and tenacity with which he attempted to obtain money from the Department, perhaps the findings and conclusions of this Court would dictate a different outcome. Sadly, that simply is not the case.

Simply put, the record belies the father's assertion that he has a sound relationship with his children. The truth of the matter is that the father knows very little about his children's education, their day-to-day activities, or their aspirations for the future. In fact, on cross-examination by counsel for the Department and the attorney for two of the children, the father acknowledged that he was not quite sure what was going on with his children's schooling and could not even provide the correct grade in which his children were enrolled.

When asked why he had not made a concerted effort to inquire about his children's schooling, the father testified that he was unable to do so based upon his inability to speak fluent English. The father also claimed that he had not been informed of the dates of his children's parent-teacher conferences. [*22]Whether or not this is so, he readily admitted that he had not taken it upon himself to make inquiry as to the dates and times of such conferences.

Despite the Department's prolonged and diligent efforts to provide the father with the services recommended by Dr. Small to achieve reunification with his children, the record reflects that the father has failed to plan for his children's future.

Testimony at the fact-finding hearing clearly illustrates that the father has yet to demonstrate an ability to independently function, as he relies on others to take care of all of his own needs. Although the father asserts that he has no need for gainful employment, as he receives social security benefits, he relies on the Department, as his representative payee, to pay all of his monthly bills and to manage his finances. Moreover, the record reflects that the father has failed to meaningfully resolve his emotional and behavioral issues and, as such, he is unable to take responsibility in caring for himself, let alone anyone else.

It is clear that the respondent has made little progress on even the most basic parental responsibilities. A review of parent mentor notes prepared by Mary Lenz, and admitted into evidence as Petitioner's Exhibit "3", reveals that there were at least nineteen (19) separate supervised visits in which the mentor noted that there was no food in the father's apartment or that she had to specifically prompt the father to provide food for his children.

Ultimately, it has been established, by a showing of clear and convincing evidence, that the Department has undertaken diligent efforts to reunify the subject children with their father. Tragically, however, the father's sense of entitlement has thwarted the Department's efforts. By his own admission, the father has acknowledged that he has failed to take it upon himself to stay abreast of his children's schooling, claiming that it is the duty of the Department to keep him informed. The father takes a similar position regarding the use of the Rosetta Stone language software, specifically testifying that, unless an appointment was scheduled by the Department, he did not use the program.

All these factors, taken in concert, paint a picture of an individual whose reliance on the social safety net is absolute. Regardless of the myriad opportunities afforded to him, respondent has seldom missed an opportunity to miss an opportunity. It is clear that he has no interest in changing [*23]that. He has taken no affirmative steps to correct the conditions that led to his children's removal. Nor has he made any type of concerted effort to plan for his children's future. He simply assumes that the Department will continue to manage his personal life and take care of his children in all respects.

Accordingly, based upon the findings of fact set forth herein, the Court determines that the subject children have been permanently neglected by the respondent father and that a dispositional hearing should be scheduled to determine if it is in the children's best interests that the parental rights of the respondent father be terminated.

Finally, the Court notes that other termination proceedings are technically pending in the Court. At the same time as the instant petitions were filed, the then attorney for all three children filed petitions alleging their permanent neglect by both parents. As well, the Department filed abandonment petitions against the children's mother seeking to terminate her parental rights.

As to the petitions filed by the attorney for the children, it does not appear that jurisdiction over the mother has ever been obtained. It would further appear that the petitioner joined with the Department's counsel in the prosecution of the petition as to her two remaining clients. For those reasons, her petitions, as against the mother, will be dismissed, without prejudice, for lack of personal jurisdiction. As against the father, her petitions will be dismissed, without prejudice, as not separately prosecuted and as moot.

Regarding the abandonment petitions filed against the mother by the Department, the Court notes that there were incomplete efforts for personal service and an unfulfilled indication that motions for service by publication would be made. The petitions will be dismissed, without prejudice, for lack of personal jurisdiction.

NOW, THEREFORE, for the reasons set forth herein, it is

ADJUDGED that Anna Z., born December 5, 1998, is a permanently neglected child as defined in Social Services Law

§ 384-b (7) of the Social Services Law; and it is further

ADJUDGED that Mian Tao Z., born June 1, 1996, is a permanently neglected child as defined in Social Services Law

§ 384-b (7); and it is further [*24]

ADJUDGED that Mian Jing Z., born November 27, 1997, is a permanently neglected child as defined in Social Services Law § 384-b (7); and it is further

ORDERED that these proceedings be, and they hereby are further adjourned, for dispositional hearings [FN4], pursuant to Family Court Act § 623, to the calendar of this Court on the 29th day of October, 2013, at 9:15 a.m., or as soon thereafter as counsel can be heard; and it is further

ORDERED that the Court shall determine, at the said dispositional hearings, pursuant to Family Court Act § 631, whether the Court shall enter orders of disposition dismissing the petitions, suspending judgment, or committing the guardianship and custody of the children, or one or more of them, in accord with Family Court Act § 634; and it is further

ORDERED that, if, at the conclusion of the dispositional hearings, the guardianship and custody of one or more of the subject children is committed to the petitioner, thus freeing a child or children for adoption, then the initial freed child permanency hearing or hearings, pursuant to Family Court Act § 1089 (a)(1)(i) shall be held on the 1st day of November, 2013, at 10:30 a.m., or as soon thereafter as counsel can be heard; and it is further

ORDERED that, upon the Court's own motion, the petitions filed on September 7, 2012, by Tammy L. Gordon, Esq., then attorney for all three subject children, alleging the permanent neglect of the three subject children by the respondent father herein, and by the non-respondent mother, be, and the same hereby are, dismissed, without prejudice; and it is further

ORDERED that, upon the Court's own motion, the petitions filed on September 7, 2012, by Patricia Barrett, Foster Care Supervisor, alleging the abandonment of the three subject children by their mother, be, and the same hereby are, dismissed,

without prejudice.

ENTER [*25]

_________________________

Family Court Judge

Dated at Malone, New York, this 26th day of September, 2013.

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, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Footnotes

Footnote 1: The Court takes specific note of the fact that the instant termination of parental rights proceedings apply only to the respondent father. The findings of fact and conclusions of law set forth in the instant decision and order in no way affect the guardianship and custody rights of the subject children's biological mother against whom separate termination proceedings were commenced by the Department of Social Services alleging abandonment.

Footnote 2:Two of the children have indicated a desire to be adopted. The oldest child has indicated that he does not wish to be adopted. Under such circumstances, and at the request of the attorney first appointed for the children, separate counsel was appointed for the child who does not wish to be adopted.

Footnote 3:Pursuant to the provisions of Social Services Law § 384-b (6)(e), when an authorized agency asserts mental illness as a basis to terminate a respondent's parental rights, "the judge shall order the parent to be examined by, and shall take the testimony of, a qualified psychiatrist or a psychologist licensed..., [with] such psychologist or psychiatrist to be appointed by the court pursuant to section thirty-five of the judiciary law." In the instant proceedings, the Department chose to voluntarily withdraw the mental illness grounds of its termination petitions, as no such court-ordered examination of the father was ever conducted.

Footnote 4:The Court is mindful that Family Court Act article 10 permanency hearings still need to be conducted in the companion neglect proceedings which resulted in the children's placements in the custody of the petitioner. The Court notes that the chief clerk of the court has scheduled the said permanency hearings at the same time as the dispositional hearings in the instant permanent neglect proceedings.