Matter of J.L.

[*1] Matter of J.L. 2013 NY Slip Op 51816(U) Decided on October 15, 2013 Family Court, Onondaga County Hanuszczak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2013
Family Court, Onondaga County

In the Matter of J.L.



XX/13



Kara Renshaw, Esq., Onondaga County Department of Law, for petitioner; Bryce Therrien, Esq., Hiscock Legal Aid Society, for respondent; Lisa Fahey, Esq., Attorney for the Child.

Michael L. Hanuszczak, J.

BACKGROUND

The child who is the subject of this neglect proceeding is J. L., date of birth 2009. The respondent is the mother of the subject child. On October 12, 2012, the Onondaga County Department of Social Services ("County") filed a petition alleging that the mother was responsible for the neglect of the child, based upon the following allegations:

a. On or about October 1, 2012, J. was temporarily removed from his mother's care on her consent after the County caseworker made an unannounced home visit at 6:45 p.m. after receiving a report that J. was a maltreated child. When the mother answered the door, she appeared to have just woken up and the apartment was completely dark. Mother repeatedly refused to allow the petitioner to see the child, stating he was sleeping. Eventually the mother opened the door to his bedroom, which was locked from the outside. There was an overwhelming odor of urine in the room, and the petitioner observed J., age 3 ½, sitting naked on a bed, without any bedding, with urine and feces on the bed, floor, and walls of the room. There were flies and bugs flying around the room, and there were dirty diapers on the floor. Mother denied that there was feces or urine in the room, but admitted that a urine-soaked pillow in the hallway was J's.

b. Immediately after J. was found locked in the room, the mother was reluctant to answer a question about how long he had been locked in his room, and she indicated that she did not understand that there was any problem with him being locked in a room for extended periods of time. She eventually admitted he had been locked in the room for at least 4 hours. However, on October 2, 2012, the mother admitted to the petitioner that she only allowed J. out of the room to give him one meal and bathe him. She stated that he was locked in his room for 22 hours of every day.

c. The mother fails to ensure that J. has adequate nutrition, as demonstrated by but not limited to the following:

1. After he was let out of the room, J. went to the kitchen and got himself a bag of Cheetos. The mother admitted that she had not fed him since around midnight the night before, which was 19 hours prior. The mother stated that if he wanted food he could have asked for it, although the petitioner observed that J. had very limited speech. The petitioner observed that [*2]there was very little food other than candy and Cheetos in the apartment, and J. ate whatever he could find, which was mostly candy. The inside of the refrigerator had green mold, dried food, and filth inside it.

2. The mother stated to the petitioner that because J's ancestry was African, he did not need "to eat a lot or every day because people in Africa do not eat a lot or drink a lot of water."

3. The mother stated that she does not want J. to get fat, and that she decides what to feed J. based on the weight of the food. She stated that as the bags of Cheetos, which the petitioner had observed J. to eat, weighed a half pound, therefore he would gain a half pound. The petitioner noted that the Cheetos actually weighed about one ounce.

d. The mother failed to maintain the home in a safe and sanitary manner. J. will be four years old in March, 2013. Although the mother claimed that he was toilet trained, she stated that he "goes in his pull-ups or just goes on the floor." Further, the bathroom and kitchen were very dirty, with dirty standing water in the bathtub, with a child's tricycle in it. There was garbage, tools, and cigarette butts within J's reach.

e. The mother has demonstrated that she is not willing to provide appropriate car for J., as demonstrated but not limited to the following:

1. When the petitioner determined that J. could not remain in his mother's care, the mother refused to provide of the names of anyone who could provide care for him. The mother then asked J. whether she should sign a consent form for him to be placed in foster care. After the mother signed the consent form, the petitioner gave the mother the phone number for the Family Support Center so that she could check on him that night. The mother responded, "Why would I want to do that?" When the mother was told J. would be able to play with other children and toys at the Family Support Center, she said, "Why does he need to do that?"

2. The petitioner visited the home on October 2, 2012, and found it to be in the same condition that it had been in when J. was removed. The mother stated that she did not intend to visit J., that she was very busy, and that she would like to take advantage of the time that J. was not in her care.

The neglect petition also alleged that the mother had preventative in-home services from March, 2010 through November, 2010 and had also been referred for substance abuse evaluation and treatment and mental health treatment.

On October 5, 2012, this Court issued an Order on Application for Temporary Removal of Child (After Filing of Petition) granting the continued removal of J. and his placement with the County. Pursuant to the Temporary Orders of Protection from this Court and the Town of Dewitt Court, no contact between J. and his mother was permitted at that time. The Court assigned attorneys to the mother and to the child. The Court also appointed a Court-appointed Special Advocate (CASA) to the case. The Court issued an Order directing the mother to undergo a psychiatric examination. The neglect proceeding ran concurrently with the mother's criminal proceeding in which she ultimately pled guilty to Endangering the Welfare of a Child.

On May 14, 2013, the Court Attorney/Referee issued a Permanency Hearing Order on consent continuing J's placement with the County for the following reasons:

The mother was incarcerated and lost her housing when she was arrested for endangering the welfare of a child and for unlawful imprisonment. She does not have a suitable residence to reunite with J. The mother also has significant mental health issues that have not been addressed [*3]and inhibit her ability to safely care for her child. The mother continues to have unrealistic expectations of J. During a recent evaluation, Dr. Knoll asked her about J's living situation. The mother responded, "J. knew what he was doing...the room was messy because he didn't get the chemicals out and clean up his own mess...I'm not a slave." The mother does not understand child development and told CPS as well as Dr. Knoll that she feeds J. four or five pounds daily and this would translate into the weight that J. would gain. The mother further needs to address her substance abuse issues. The permanency goal was reunification with the mother but the Order noted that there is a no-contact Temporary Order of Protection in place.

On July 16, 2013, the mother admitted to allegation "b" of the neglect petition but stated that it only occurred on that one day. The matter was then adjourned for a dispositional hearing which commenced on August 22, 2013, was adjourned due to the unavailability of a witness, and then concluded on September 17, 2013.

STANDARD OF LAW

Section 1012 of the FCA defines a neglected child as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the parent or other person legally responsible for care to exercise a minimum degree of care in a number of areas, including

in providing the child with proper supervision or guardianship and by unreasonably inflicting or allowing harm to be inflicted.

In the dispositional phase of the neglect proceeding, the Court must determine which of the dispositional remedies is in the best interests of the child, including the parent's capacity to properly supervise the child, based upon the current information and the potential threat of future neglect. (Matter of Suffolk County Department of Social Services v. James M., 83 NY2d 178; Matter of Lemar H., 23 AD3d 383.) Section 1046(c) of the Family Court Act authorizes the admission of material and relevant evidence during a dispositional hearing.

SUMMARY OF TESTIMONY

Dr. James Knoll testified that he is the Director of Forensic Psychiatry at SUNY Upstate Medical University in Syracuse, New York. He stated that the County requested that he perform a forensic psychiatric evaluation on H. L. for the purpose of diagnosing her psychiatric state and making mental health treatment recommendations. The Court notes that the parties stipulated to Dr. Knoll's qualification as an expert witness.

Dr. Knoll testified that it is his opinion within a reasonable degree of medical certainty that Ms. L. has the following diagnoses: Borderline Personality Disorder (BPD); Antisocial and Narcissistic personality traits; and substance abuse for alcohol, cannabis, and cocaine.

The witness testified that he recommended that Ms. L. receive the following treatments: mental health treatment, including Dialectical Behavior Therapy (DBT); and evaluation and treatment by a substance abuse addiction professional.

Dr. Knoll testified that it is his opinion that Ms. L. does not grasp the seriousness of locking a child into a room for 22 to 23 hours per day with a lack of hygiene and food. He stated that Ms. L. told him that she disagreed with the Child Protective Services findings; that she locked up the child so as to protect him; and that eating one time per day is fine. [*4]

Dr. Knoll also testified that BPD and Narcissism are lifelong conditions, but that long-term DBT therapy may help to attenuate the conditions.

On cross-examination by the attorney for the mother, Dr. Knoll testified that the BPD condition may make a person violent. He stated that violence would not be an automatic response but might result if the person lost her temper with a child. He also stated that BPD does not automatically make a person a bad parent and that it is his opinion that 50% of the individuals involved with Child Protective Services have BPD versus 15% in the community control group.

On cross-examination by the Attorney for the Child, Dr. Knoll testified that Ms. L. did not show much concern for J. during the evaluation; rather, she focused on her own legal problems and her travel plans. He stated that Ms. L. was fixed in her perception about J. in that she viewed the child as being much more capable than he really is, for example, believing that a young child can safely clean up spilled Clorox bleach. The witness stated that Ms. L. is emotionally inconsistent.

The Court received Dr. Knoll's forensic evaluation report, dated March 25, 2013, into evidence as Petitioner's Exhibit 1.

The Court finds Dr. James Knoll to be an extremely credible, believable, and informative witness.

Kelly Brooks testified that she is employed by the County as a caseworker and that she has been assigned to the L. case since October 1, 2012. The witness testified that the mother has not seen J. since he was removed from her care in 2012. She stated that there was a no contact temporary order of protection issued against the mother in her criminal case as well as in the current Family Court proceeding. Ms. Brooks testified that the mother currently resides in the village of Camillus with a friend's family and that she receives SSI benefits.

Ms. Brooks testified that the mother was released from incarceration on her criminal charges in June, 2013. She stated that since her release the mother has voluntarily engaged in DBT mental health counseling at Hutchings for three to four weeks; has undergone a substance abuse evaluation at Syracuse Behavioral Health; and has attended five of the ten-week Incredible Years parenting classes at Catholic Charities.

Ms. Brooks testified that she does not recommend visitation between the mother and J. at this time due to the severity of the mother's mental illness and J's special needs. She also stated that he has not asked about his mother. The witness stated that due to J's imprisonment he has a variety of physical and emotional problems for which he is undergoing remediation. She testified that he is being treated for speech delays as well as a disorder of sensory processing. The witness testified that J. lives in a pre-adoptive foster home and attends Head Start and receives additional services through Enable. The witness stated that recently J. began displaying aggressive tendencies.

On cross-examination by the attorney for the mother, Ms. Brooks testified that the mother has has been compliant with services which have been provided to her by the County.

On cross-examination by the Attorney for the Child, Ms. Brooks testified that J's sensory issues regarding space are significant and that he wears a "compression vest" at times to keep him "grounded" when he is overstimulated. The witness stated that there is a high degree of skill needed to manage J. [*5]

The Court received into evidence the Sensory Profile Summary, dated August 8, 2013, prepared by April Nolan of Enable as the Attorney for the Child's Exhibit 1.

The Court finds Kelly Brooks to be an extremely reliable, credible, and insightful witness.

Hildegarde DeBaise testified that she is the Director of the Family Place at the Salvation Army in Syracuse. She testified in detail about the supervised visitation program at the Family Place and the range of mental health issues of some of the parents.

The Court finds Ms. DeBaise to be a very astute, professional, credible and reliable witness.

H. L. testified that she is J's mother and that she last saw the child on October 2, 2012. She stated that she is seeking visitation with J. She stated that she is trying to complete her college degree and that it is "tough" to do with a four-year-old. She also stated that she trying to quit smoking, drugs, and alcohol and it is a very stressful time. Ms. L. stated that she attends rehabilitation at Syracuse Behavioral Health and that she has clean drug tests.She also stated that she is doing well in parenting classes. She testified that she sees Dr. McMaster at Hutchings once per month for counseling. She stated that she is willing to participate in supervised visitation at the Family Place.

Ms. L. testified that she now lives in an apartment with the son of individuals that she previously lived with and that she met those individuals when she was incarcerated in the Justice Center.

Ms. L. testified that, while in the past she sought to isolate herself, she now wants to be a part of a group. She stated that previously J. had no socialization, "just music," and that she now recognizes that it was a problem for J. not to be socialized. She stated she now believes she should "let him do whatever he wants until he is six or seven years of age."

On cross-examination by the County Attorney, Ms. L. testified that she has a bond with J. and that she loves and misses him. She stated that she taught him "preschool." She stated that she knows that he has sensory issues and that he needs more attention but that she was trying to learn how to use computers and attend online school. She stated she would never abandon J. as she was abandoned. She also stated that she was accepted to a school for video game design after submitting a FAFSA application.

On cross-examination by the Attorney for the Child, Ms. L. testified that wants to design computer games and she intends to stay in Syracuse for three years and pay her debts. She stated she then intends to move to Manhattan for five years and then move to California. She testified that she wants a career to get money and that she needed money for day care. She stated that she will receive her Bachelor's Degree in one year.

Ms. L. testified that J. was locked up during the six-month period prior to her arrest in October, 2012 and that he would run around the apartment when she on the computer trying to study. In response to several questions regarding her interactions with J., Ms. L. stated that she resided with a paramour prior to their breakup in 2012 and it was the paramour who assumed the parental duties for J., including teaching him to walk.

Ms. L. testified that J's father is a person named "Irwin," who lives on the East Side of Syracuse, that he works at a restaurant, and that she does not know his last name. She stated that she is not sure if he knows that he is J's father. She also testified that she sent him a letter when she was in jail but that he did not respond. [*6]

The Court finds H. L. to be a very troubling and disturbing witness in that she was vague, inconsistent, and not at all believable with respect to the slight degree of remorse she articulated for her mistreatment of J. Her testimony was delivered in a monotone and appeared to be a "stream of consciousness" narration rather than a specific answer to a question. The Court noted that when Ms. L. was not on the witness stand, she stared off into space during most of the hearing. Ms. L's affect in Court was extremely flat and she mustered a modicum of enthusiasm only when she spoke about her future career as a computer game designer.

Betty Carroll testified that she is the Program Coordinator for the Onondaga County Court-Appointed Special Advocates (CASA) program. She answered foundation questions concerning her August 4, 2013 report, which was received into evidence as the Attorney for the Child's Exhibit 2. The Court finds Ms. Carroll's report to be extremely helpful and insightful.

At the conclusion of testimony, the attorneys made closing arguments and stipulated to a twelve-month order of supervision that includes substance abuse treatment at Syracuse Behavioral Health; therapy at Hutchings, including any medication or follow up recommendations; and the "Incredible Years" parenting class. There was no agreement concerning the issue of parenting time between Ms. L. and J. The Attorney for the Child and the County Attorney jointly recommended that it would be in J's best interest if there were no contact between Ms. L. and the child at this time.

FINDINGS OF FACT AND CONCLUSION OF LAW

Based upon the stipulation and by the admission of the respondent H. L., the Court finds J. L.to be a neglected child. This case is one of the most disturbing cases that has come before this Court.

Based upon the material and relevant evidence adduced at the dispositional hearing, the Court finds that J. has bonded with his foster parents and that he has been provided with medical, educational, and psychological assistance under the foster parents' care. (In re Guardianship of Tyreese H., 4 AD3d 208.) The Court notes that J. is a "special need" child, and the evidence shows that he struggles to overcome the negative effects from when he resided with his mother. Ms. L. locked J. in a room alone for 22 hours at a time; expected the three-year-old child to clean up his own urine and feces; and fed and bathed him once per day. Truly, J. is an innocent victim of what can only be described as solitary confinement. J. continues to exhibit speech, attention, and sensory deprivation deficits and recently began displaying signs of mild aggression to other children. The Court finds that he is receiving the services that he needs to progress, but that he is only at the beginning of his long road to recovery. Accordingly, the Court will continue J's placement with the Commissioner.

The Court also finds that a parental bond between J. and his mother does not exist at present. The testimony shows that J. has never asked for his mother, and Ms. L's initial response to J's removal was relief. Prior to the entry of a no-contact order of protection in her criminal proceeding, Ms. L. chose not to contact the County to make any inquiry regarding J. The Court finds it highly significant that Ms. L. turned over much of J's care to her paramour until such time as that relationship ended. Ms. L's testimony concerning her desire to visit with J. appeared to be rehearsed, and there was no evidence of parental affection on her part. Therefore, based upon the orders of protection, the Court finds J's removal from his home was in his best interest and it was not appropriate to make efforts to reunite the respondent and the subject child. [*7]

The Court finds that Ms. L. must make significant gains in her mental health and substance abuse if she intends to remedy the parental defects which caused the removal of J. (Matter of Philip D., 266 AD2d 909.) At this time, Ms. L. shows little, if any, insight into her shortcomings as a parent; indeed, her efforts appear to be focused on her career plans of gaining fame and fortune in the video game industry. Ms. L's mental health problems are severe, especially when balanced against the demands of parenthood. The Court is especially concerned with Ms. L's testimony that she would let J. do whatever he wants until he is six or seven years of age and views it a continuation of her bizarre and extremely unsafe views of her parental responsibilities.

Therefore, the Court concludes that it is in J's best interests at this time that his care givers should focus all of their efforts on his recovery and not attempt to create a parent-child relationship until such time as Ms. L. can demonstrate significant progress in addressing her mental health problems and evidence is provided that clearly shows that J's emotional well being will not be jeopardized by premature contact with Ms. L. (Matter of Telsa Z., 84 AD3d 1599.)

The attorney for the County is directed to submit a one-year order of supervision and a one-year, continued stay-away order protection to the Court, incorporating the findings and conclusions of this Decision as well as the prior stipulation of the parties to services. The County is also directed to include a provision in the order for random substance abuse testing of Ms. L. The attorney for the County is directed to schedule a permanency hearing for J. in accordance with the Family Court Act.