Matter of Anonymous II (Kimberly D.)
Annotate this CaseDecided on August 10, 2022
Family Court, Sullivan County
In the Matter of the Commitment of Guardianship and
Custody pursuant to § 384-b of the Social Services Law
Anonymous, II, A Child under the Age of Eighteen Years,
Alleged to be Permanently Neglected by Kimberly D., Respondent.
Docket No. 17544
E. Danielle Jose-Decker, J.
A Permanent Neglect Petition was filed by the Department of Family Services on December 16, 2021, wherein it was alleged that the Respondent Mother, permanently neglected her son, Anonymous, II by failing to obtain court-ordered mental health treatment, court-ordered domestic violence counseling, court-ordered substance abuse treatment and housing. Trial commenced on March 16, 2022, and it concluded on July 29, 2022.
At the time of the trial, the Petitioner, the Department of Family Services (the "Department"), appeared by Linda DaSilva, Esq, the Respondent Mother, appeared and was represented by Jane M. Bloom, Esq., and Lisa Ann Swift, Esq., appeared as the Attorney for the Child.
For the reasons that follow, the Petitioner has failed to meet the threshold burden of proving by clear and convincing evidence that it made diligent efforts to strengthen the parent-child relationship, and, consequently, the petition shall be dismissed.
Findings of FactThe Department first asked the Court to take judicial notice of the following orders:
• Order of Fact-finding and Disposition — Neglect, entered on January 24, 2018.• Orders of Protection, entered on November 27, 2017, October 30, 2018 & August 23, 2019• Permanency Hearing Orders entered on January 24, 2018, June 10, 2019, March 16, 2020, May 20, 2021, July 14, 2021 & January 18, 2022.Notably, and contrary to the assertions in the petition, the Order of Fact Finding and Disposition does not require the Respondent to complete domestic violence counseling, mental health counseling or substance abuse counseling. The Order does, however, require the Respondent to comply with an Order of Protection, which has since expired.
The first witness to testify on behalf of the Department was the Foster Care caseworker.
The Foster Care caseworker testified that she was assigned to the family for Anonymous II, the child of the Respondent Mother who was initially removed from her care on May 25, 2017, and has been in foster care with the same pre-adoptive foster care family since that time. The Father's parental rights had been terminated in 2019 by the Sullivan County Family Court.
The caseworker indicated that her duties as a foster care caseworker require that she supervise visits, provide the Respondent with rights and responsibilities letters, provide Respondent with medical updates regarding the child, and meet with the Respondent regarding goals. Initially, the Permanency Planning Goal in the case was to return the child to the Respondent Mother; however, that goal was changed to "Placement for Adoption". The caseworker also testified that she assisted the Respondent with referrals to treatment providers. When asked about the court-mandated conditions which the Respondent was required to follow, the caseworker testified that the Respondent was required to participate in long term domestic violence and mental health counseling, cooperate with supervised visitation, obtain and maintain suitable housing, remain in contact with the Department, comply with an Order of Protection, and obtain substance abuse treatment.
When asked how the Respondent was progressing with the court-ordered conditions, the caseworker testified that the Respondent Mother had not complied with the long-term domestic violence counseling requirements and had not obtained and maintained suitable housing. With respect to mental health treatment, the caseworker testified that the Respondent Mother had partially completed mental health treatment, however, her case was closed in March of 2021 due to her lack of participation. With respect to housing, the caseworker testified that the Respondent Mother was staying with family and friends. The caseworker also testified that there was partial compliance with substance abuse treatment in that the Respondent Mother had completed the Step One program but had not participated in any aftercare.
The Respondent Mother has successfully maintained contact with the Department, and she has complied with the Orders of Protection that had been issued by the Court. With respect to visitation, the caseworker testified that the Respondent was substantially in compliance with the supervised visitation, which was arranged for her weekly, for two hours on Thursdays.
When asked about increasing visitation, the caseworker testified that visitation was never advanced or increased because the Respondent Mother remained homeless and had not completed long term mental health or domestic violence counseling.
With respect to the period between November 2020 through November 2021, the caseworker testified that she sent monthly letters to the Respondent regarding her rights and responsibilities and met with the client during face-to-face meanings. During these meetings, the caseworker testified that she updated the Respondent regarding the child and his medical condition, and discussed the Respondent's progress with her. When specifically asked about helping with housing, the caseworker testified that she would have helped the Respondent with housing if the Respondent requested it, but the Respondent did not request assistance with [*2]housing. When asked whether the caseworker had inspected any of the Respondent's housing, the caseworker testified that the Respondent never presented a home that could be viewed.
On cross-examination by the Respondent's attorney, the caseworker conceded that she did not help the Respondent with housing. The caseworker stated that the Respondent did not ask for help with housing when the caseworker generally asked for the Respondent to let her know what she needs help with. The caseworker also conceded that the only issues that were unsatisfied were long term domestic violence counseling and housing. The caseworker testified that the Respondent Mother never provided her with a release for Fearless (the domestic violence program). The caseworker conceded again that she never offered the Respondent help with housing even though she knew it was an issue.
Upon questioning by the Attorney for the Child, the caseworker conceded that she was aware that housing has always been an issue for the Respondent. The caseworker also confirmed that the Respondent Mother participated in medically assisted treatment (Suboxone) with a physician, and that she was currently and historically compliant with her treatment regimen.
The Department offered certified records from Step One, SCADAS, Family of Woodstock, Inc., and Greenblatt Psychology and Counseling Offices into evidence. They were marked as Petitioner's Exhibits 1 through 4 respectively, and they were received in evidence on consent.
The Department rested.
Respondent's counsel moved for a trial order of dismissal. As the Court had not yet reviewed the medical records, the motion was denied for the time being.
The Respondent Mother was the next witness to testify.
The Respondent Mother testified that she did, in fact, turn in a signed release for Fearless. She contended that she signed releases for Fearless numerous times and that she even signed blank releases which she gave to the caseworker. In addition, the Respondent Mother testified that she and the caseworker called Fearless together, at which time she gave verbal consent for Fearless to speak with the caseworker regarding her progress in domestic violence counseling.
The Respondent Mother testified that she is working off the books presently, earning anywhere from $10.50 to $15.00 per hour performing landscaping and cleaning services. The Respondent Mother indicated that she works approximately 35 hours per week. With respect to housing, she indicated that she has contacted many agencies for assistance and that she has been denied housing due to lack of income.
The records from Step One (substance abuse treatment) indicate that the Respondent Mother successfully completed treatment with "all goals met" in March of 2019 (TA16 Discharge Summary, p. 1). Furthermore, the Client Discharge Report indicates that "client not in need of additional services" (p. 3). In addition, the discharge plan indicates that the client will continue with MAT [medically assisted treatment] (p. 6). Finally, in the section of the discharge plan that references aftercare referrals, the plan states "N/A" (p. 6).
Records from Greenblatt Psychology and Counseling Offices indicate that the Respondent was discharged from therapy after three sessions plus an initial diagnostic session due to the Respondent's lack of participation in 2019.
Records from family of Woodstock Inc., show that the Respondent Mother was awarded a certificate of completion for domestic violence education sessions on November 14, 2017.
Records from Sullivan County Department of Community Services show that the [*3]Respondent Mother was discharged from treatment on or about June 19, 2020, and that the discharge was therapist-initiated as a result of "crisis stabilization hav[ing] been achieved" (p. 148). Previously, on July 29, 2019, and April 11, 2017, the Respondent Mother was screened out of mental health services because she was already receiving services. Upon being screened out, the Respondent Mother was referred to her current provider, Synergy (pp. 112-115). Later, in or about November 2020, the Respondent Mother initiated a self-referral to Sullivan County Mental Health to address her anxiety and insomnia. It appears that the Respondent Mother attended at least three sessions, which included a combination of therapy and medication (pp. 161-178). After December of 2020, apparently, the Respondent Mother stopped engaging in therapy, and she was discharged, as a result in March 2021 (pp. 180-181).
Conclusions of Law
"A permanently neglected child is one who is in the care of an authorized agency and whose parent has failed, for a period of more than one year 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. Where, as here, petitioner seeks to terminate parental rights on the basis of permanent neglect, it must establish, by clear and convincing evidence, that it has made diligent efforts to encourage and strengthen the parent's relationship with the child." Matter of Jase M. 141 NYS3d 153, 156 (3rd Dept. 2021), lv. to appeal denied by Matter of Jase M. 37 NY3d 901 (2021), (internal citations omitted); see Social Services Law §§384-b(3)(g)(i), 384-b(4)(d), 384-b(7)(a).
"Diligent efforts will be found when the agency makes practical and reasonable efforts to ameliorate the problems preventing reunification and to strengthen the family relationship through means such as assisting the parent[s] with visitation, providing information on the child's progress and development, and offering counseling and other appropriate educational and therapeutic programs and services." Id. at 156. See also Matter of Chloe B., 189 AD3d 2011 (3rd Dept. 2020).
In this particular case, despite having knowledge that housing has always (for five years) been an issue for the Respondent Mother, the Department did not demonstrate that it made any effort to ameliorate the housing issue — which appears to be the only issue preventing reunification. Indeed, the Respondent Mother has consistently availed herself of the meager visitation offered by the Department. She has appropriately participated in mental health counseling, substance abuse treatment and domestic violence counseling, even though none of these services are court-ordered. The Respondent Mother is compliant with her medically assisted substance abuse treatment, and she is employed, albeit off-the-books.
Additionally, the Department seems unreasonably focused on the Respondent Mother's failure to complete long-term domestic violence counseling in this case. However, requiring victims of domestic violence to complete counseling to prevent further abuse reinforces the victim-blaming stereotype that victims are somehow responsible for their own abuse. Considering the Department's failure to prove by clear and convincing evidence that it has made diligent efforts to encourage and strengthen the parent's relationship with the child, in this case by helping the Respondent Mother to address her housing deficiency, the issue of the Respondent Mother's completion of domestic violence counseling (whether required or not required) is academic.
WHEREFORE, based upon the foregoing, it is hereby
ORDERED that the permanent neglect petition filed December 16, 2021, is hereby dismissed.
This shall constitute the Decision and Order of the Court.
Dated: August 10, 2022E N T E R
___________________________________
HON. E. DANIELLE JOSE-DECKER
Acting Family Court Judge
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