In the below case Judge Lee Elkins decides that two children should be removed from their mother's care due to her neglect. IN THE MATTER OF AN APPLICATION FOR THE COMMITMENT OF K M., and N B., children under the age of eighteen, pursuant to SSL § 384-b
Docket No. B 14422-3/02
FAMILY COURT OF NEW YORK, KINGS COUNTY
2003 NY Slip Op 51273U
August 14, 2003, Decided
 Lee Elkins, JFC.
 
The petitioner, Episcopal Social Services, brought an action under Social Services Law § 384-b(7)(a) to free the subject children for adoption on the ground that the respondent mother, Kim M. permanently neglected them. The respondent admitted to permanently neglecting the subject children, K and N The court conducted a contested dispositional hearing on April 11, June 24, 30 and July 7, 2003.

The evidence

The children initially entered foster care in 1997, under a finding of neglect against the mother, based upon her substance abuse. [N 15546-7/97] The children were placed in the home of the present foster mother, their maternal aunt, for two months. They were discharged to their mother, under agency supervision, in December 1997.  On May 4, 1999, the children returned to foster care again due to the respondent mother's substance abuse. [N 10139-40/99] The children were re-placed in the home of their maternal aunt on June 11, 1999. They have remained continuously in her home, in foster care, since that time. In September 2001, the respondent gave birth to a sibling, R H. R was born with a positive toxicology for cocaine. He was placed into foster care with another maternal aunt under a third neglect petition. [N 22168/01] He is not in the same foster home as the subject children. In June 2002, the respondent was arrested and charged with felony drug possession. [SCI 4512/02] The respondent plead guilty to a felony and entered the Brooklyn Treatment Court in June 2002. On June 27, 2002 petitioner filed this petition. On July 25, 2002, the Brooklyn Treatment Court mandated respondent into the Veritas residential drug treatment program, as an alternative to incarceration. Another child, Keshaun [d.o.b. 12-6-02], was born while respondent was in residence at Veritas. Kcontinues in her custody. The Brooklyn Treatment Court dismissed all charges against the respondent on June 26, 2003, following her completion of the mandates of the court. The respondent continues to reside at the Veritas program. She has not used cocaine in more than a year.

The case worker Clinkscales testified that the kinship foster home is pre-adoptive, and that the children wish to be adopted by their aunt. The aunt wishes to adopt the children. An eleven year old cousin also lives in the home. The children's aunt is a store manager. The home is located on Long Island. The children are in regular education. According to the case worker the children are very attached to their aunt and have "thrived" in her home. The children have stated that they do not want to return to their mother. The respondent and her sister are on good terms. The respondent mother visits with the children at R's kinship foster home all day on Saturdays. There have been no agency supervised visits since late 2001.

The respondent testified that she is thirty-four years old. She has abused cocaine intermittently since 1990. The respondent graduated from her first drug treatment program, Samaritan, in 1992. While at Samaritan, the respondent obtained a G.E.D.. As previously indicated, the subject children   were first removed from the respondent's home in 1997, when found unattended at home. K was four years old. Nwas three years old. According to the respondent, the younger child called the police. The children were placed in the care of their current foster parent for two months, before being returned to their mother in December 1997. The respondent testified that she began using cocaine again in 1999. According to the respondent, her family was aware of the problem. The children were removed again in May 1999. K was six years old. N was five years old. After being briefly in non-kinship care, the children were returned to their aunt's home on June 11, 1999. They have remained in that home ever since.

The respondent spent a week in detoxification at Yonkers General Hospital, in January 2000. She then entered "Turning Point," an upstate inpatient rehabilitation program. She completed rehabilitation there from January 28 to February 25, 2000. She was referred to an outpatient program, ATC. However, she failed to attend and began using cocaine again in March 2000. In September 2001, she gave birth to Ronald H., with a positive toxicology for cocaine. The father   is R H., with whom the mother continues to have an intimate relationship.

In October 2001, the respondent entered the residential drug program, Pride Site II. According to a letter from Pride Site, addressed to the respondent's counselor at Veritas, the respondent was mandated "by ACS" into Pride Site. The agency planned for family re-unification. The respondent visited her older children at her relative's home weekly and saw her infant Ronald twice a week at the program. The agency discussed placing R in a mother-child residence with the respondent. The Pride Site letter states: "however because K had been here long enough to start to build some bonds with her peers and was beginning to trust the staff it was decided to leave her where she was and maybe move her at a later date." At that point in time, the plan was to stabilize the respondent so that she could reunite with her then three children and the baby's father, R H.. Instead, the respondent left the program against clinical advice, in January 2002.

Despite the Pride Site letter, the respondent testified that she believes Episcopal Social Services has not given her "a chance." According to the respondent, Episcopal never "brought treatment to" her. She continued to abuse drugs from May 1999 until her arrest in June 2002. Although she knew she needed to re-enter a program, the respondent did not contact the agency or the children or appear in court. The respondent testified that she was "not ready to commit" to her recovery, until being mandated into treatment by the Brooklyn Treatment Court. Veritas is the fourth program the respondent has entered in fourteen years of drug abuse.

On July 25, 2002, under the mandate of the Brooklyn Treatment Court, she entered the Veritas young mother's program. The respondent was never sanctioned by the Brooklyn Treatment Court. At the conclusion of the dispositional hearing, she was poised to enter level 3 of the Veritas program.  Level 3 is the last phase before "move out." She regularly attends individual sessions with a drug treatment counselor, and attends weekly group sessions. She receives outside therapy twice a week to address issues of anger, and guilt. The respondent testified that she is "angry at her whole past life, angry at relapsing and losing her children." She believes that with the current support system she has a better chance of avoiding relapse.

The respondent testified that the girls know she is their mother. She and her sister have a close relationship. She knows that her sister wants to adopt the girls. She also believes that her sister would allow her to play a part in their lives. She concedes that her sister provides excellent care for her daughters. Nonetheless, the respondent noted that she cared for her children, except for the initial ACS intervention, until they were five and six years old. Although she knows that the children wish to remain where they are and to be adopted, she believes that the children are angry with her because she relapsed into drug abuse. She also believes that the case worker has influenced their thinking by consistently talking to them about adoption.  She testified that she believes the girls are afraid because they "don't know what will happen in the  future." The respondent believes that family counseling between her and the girls, and a structured transition back to her care would alleviate their anxiety. The purpose of the family therapy would be to talk about the "work [the respondent] has done," and what she has "done to them." The respondent's plan is to have her sister or mother keep the children while she attends her program.

In order to leave Veritas, the respondent is required to save $ 2500 and obtain housing. She has a pending application for a Section 8 housing certificate. The application was filed in January 2003. The program provides the respondent with food and shelter. The respondent has saved $ 388. She has received vocational training as a home health aide, and has been employed since May 2003. As noted, the respondent was pregnant with her fourth child, K, at the time of her arrest and entry into Veritas. K's father is also R H.. Mr. H. provides the respondent with $ 60 a week for K, when he visits K at the Veritas nursery on Fridays. Mr. H. is employed as a linen sorter at a hotel. He has held the job since 1996. Although Mr. H. maintains an apartment in Brooklyn, the respondent cannot live there as the surrounding neighborhood is a relapse trigger. The respondent reported to her program that she has used drugs in that community in the past. Mr. H. is also a recovering crack cocaine addict, who attended Pride Site. He graduated from Pride Site in 1993.

The respondent's counselor at Veritas, Ms. G, testified on her behalf. Although she has never met the children who are the subject of this petition, she recommended that the girls be returned to their mother based upon the respondent's progress in the drug treatment program. The counselor reported that the nursery staff, who have seen the respondent with K, state that she is very loving toward him. The counselor described the prerequisites for leaving Veritas as: staying out of trouble; leaving the program and returning without drug use; attending group sessions; seeing the psychotherapist; graduating from a vocational and G.E.D. programs; obtaining housing; and saving $ 2500. The next step is to begin aftercare in the "move out" phase. The respondent would move into an apartment, attend weekly groups for preventive aftercare, submit to supervised urine testing, continue in psychotherapy, and continue employment. She would receive public assistance for K, and a child care voucher. After six months the respondent would graduate from the program.

Ms. G testified that the respondent was referred to psychotherapy after having verbal conflicts with other residents and program staff. The program verifies the respondent's attendance. Ms. G testified that the respondent has unresolved anger that sometimes gets in the way of her treatment. She also testified that the mother has had no conflicts with staff in the last three months. The counselor testified that the respondent is helpful to staff and trusts the staff.

According to Ms. G, the respondent "still has anger issues." Although the respondent began anger management counseling, she stopped attending due to conflict with her employment. The counselor  testified that the program intended to refer her again for anger management counseling. The respondent's primary counselor also referred the respondent and Mr. H. to joint counseling after noting problems in their relationship. The respondent and Mr. H. attend counseling together weekly. According to the counselor the plan is for the respondent to reside with Mr. H. and the children as a family. The counselor has no knowledge of Mr. H. other than having seen him visiting at the program. The counselor testified that she did not ask what Mr. H.'s involvement was with the mother in September 2001, when she gave birth to R H. with a positive toxicology for cocaine.

The counselor testified that about half of the clinical population meet the criteria for successful completion of the program, and that the respondent is in that group. The program's position is that the goal should be reunification, "because she is the mother." Ms. G testified that she believes the girls should be returned to their mother because "she is clean." The counselor testified that she had not spoken to the children or to the foster mother, and that she was an advocate for the mother. Ms. G conceded that in every case where the parent is compliant with the drug program, she advocates for reunification of the parent with their children.

The law guardian advocates for the children's adoption. He notes the children's express desire to be adopted by their maternal aunt, and unwillingness to return to the mother. The respondent placed in evidence, a letter she wrote to her attorney. [Attachment to R # A] In the letter, the respondent complains that the case worker breached confidentiality, allegedly by telling the foster parent, in the presence of the children, that "the judge is for reuniting the children with their mother." The children apparently called their grandmother to report this information. The mother asserts that this occurred following a court appearance on May 12, 2003. The mother reports to her attorney that when she arrived at her sister's home for her weekly visit "my youngest daughter Nstarted crying, asking if they were going to move with me next week based on Mr. C['s] conversation with [the aunt] after court." The mother states that she feels "betrayed" by the case worker's breach of her "privacy."

The law

Where there has been a finding of permanent neglect, the court has three dispositional alternatives: "dismissal of the petition [Family Ct Act § 631 [a]; § 632], suspension of judgment for up to one year [Family Ct Act § 631 [b]; § 633], or the termination of parental rights and the commitment of the custody and guardianship of the child to the agency so that [the child or children] may be adopted [Family Ct Act § 631[c]; § 634]" [Matter of Tiffany A. [Caroline L.], 242 A.D.2d 709, 712 [2nd Dept. 1997]]

The issue in this case is whether the court should suspend judgment for a period of twelve months, in order to allow the respondent to complete the transition from her program to the community, to obtain a residence for her and her four children, and to undergo a course of counseling with the two girls. A suspended judgment provides a grace period of up to one year during which a parent is given an opportunity to "demonstrate the ability to be a fit parent" (Matter of Angela LL. [Rebecca LL.], 287 A.D.2d 823, 824 [3rd Dept. 2001]; see Family Ct Act § 633]  ; 22 NYCRR 205.50] The respondent asserts, in effect, that by completing a year at Veritas and by satisfying the mandate of the Brooklyn Treatment Court, she has earned the right to a suspended judgment. The mother's argument misapprehends the jurisprudential basis for suspending judgment. A suspended judgment is no more a reward to the parent for efforts at rehabilitation, than termination of parental rights is punishment for the parent's past neglect.

Santosky v. Kramer, [455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 [1982]] held that the State using the parens patriae power, may not simply displace a child's parent, in the best interest of the child. Santosky also recognized that the analysis changes, once the factual determination is made clearly and convincingly that the parent neglected the obligation to protect and nurture the child for so extended a period that the neglect may be characterized as permanent. Following the finding of permanent neglect, the State may substitute another permanent guardian for the parent, where to do so is in the best interest of the child.  At that point in the litigation, due process  no longer requires the court to regard the parent's and child's interests as one in the same.  Rather, at disposition, the court must consider the interest of the child to permanent security as paramount to the interest of the parent to raise his or her own child.  The outcome must be determined solely from the perspective of the child's interests, which may or may not be concurrent with those of the parent. [Matter of Jessica Marie Q., 303 A.D.2d 512, 514, 757 N.Y.S.2d 304 [2nd Dept. 2003]]

It follows that the dispositional hearing is not simply an evaluation of the parent's fitness to raise the child relative to the fitness of the foster parent. Just as the foster parent is not entitled to continued custody of the child simply by virtue of having superior resources or parenting skill, the parent is not entitled to return of the child simply by virtue of rehabilitation. [Matter of Tiffany A., supra, 242 A.D.2d at p. 714] Rather, the extent of the parent's rehabilitation is but one factor  which must be considered along with others in determining whether the parent is the best resource for the child. An equally compelling factor to be considered in evaluating a suspended judgment, is whether the parent can meet the child's developmental needs within a reasonable time   frame. 7 [Compare, Matter of Tiffany A., supra, 242 A.D.2d at p. 714, and Matter of C. Children, 253 A.D.2d 554, 677 N.Y.S.2d 177 [2nd Dept. 1998], with, Matter of Society for Seamen's Children, on behalf of Juda J., 208 A.D.2d 849, 617 N.Y.S.2d 843 [2nd Dept. 1994]; In the Matter of Zachary "CC", 301 A.D.2d 714, 753 N.Y.S.2d 561 [3rd Dept. 2003]] Evaluating the parent's progress in light of the child's best interest, the court must consider such additional factors as the length of time the child has been in foster care; the child's relative attachment to the natural parent and to the foster parent; the prospect of reunification of the parent and child within the period of the suspended judgment; the probable effect of such reunification on the child's emotional, social and physical development; and whether to return the child to the parent is consistent with the child's safety. 

It is because the child's interests predominate, that the child's relative attachment to the parent and to the foster parent is a significant factor in the dispositio  of permanent neglect cases. 8 [See, e.g., In the Matter of Avery Curtis Foster, Joe D.,     A.D.2d    , 761 N.Y.S.2d 672, 2003 N.Y. Slip Op. 14664 [2nd Dept. 2003]; In re. Commitment of the  [*13]  Custody of Shaka Efion C., 207 A.D.2d 740, 616 N.Y.S.2d 620 [1st Dept. 1994]] All things being equal, the court may seek to preserve the child's biological ties, even at disposition of the permanent neglect petition. [See, e.g., In the Matter of Terrance G., 190 Misc.2d 224, 731 N.Y.S.2d 832 [Fam. Ct. Queens 2001] [DePH.ips, J.]] However, this preservation is for the sake of the child, and does not reflect a proprietary interest entitling the parent to a suspended judgment. [See, e.g., In re. Ishmael A., 264 A.D.2d 647, 694 N.Y.S.2d 658 [1st Dept. 1

In this case, the girls have suffered a history of instability due to repeated placement in foster care. As a consequence of this history of instability, the children are angry at their mother, and fearful of being returned to her. The children have thrived since acquiring stability for four years following placement in the home of their maternal aunt. As a result, the children's express desire is to be adopted and not to be returned to the respondent mother's care. This is a compelling factor in deciding whether to suspend judgment. [See, e.g., In the Matter of Karina U., 299 A.D.2d 772, 751 N.Y.S.2d 114 [3rd Dept. 2002]; and see footnote 7.]

The respondent, in the court's view, lacks insight into the impact of this instability on the children's development. The children's desire to remain in their aunt's home is no doubt related to their anxiety about the prospect of continued instability in their mother's care. The mother, by blaming the agency and the case worker for the children's desire to be adopted, fails to acknowledge the legitimacy of the children's need for stability and  security. Although these matters might be addressed by the mother in individual and in family therapy, that intervention would further the children's interests only if there is a high probability of reunification.

Therefore, in addition to the children's desire to be adopted by their aunt, the court must weigh in the balance the maternal aunt's demonstrated ability to provide the children with a stable home, against the likelihood of the children achieving stability in their mother's home within the period of a suspended judgment. In striking this balance, the court must consider the mother's progress since entering Veritas, in light of her history of attending four programs in fourteen years.

It is significant that there has been a graduated response to the respondent's neglect of her children because of her addiction. By the mother's own account, she had a substance abuse problem before either child was born. Initially, in 1997, the children were removed briefly, and returned to the mother. They were then at the vulnerable ages of three and four years, respectively. The mother acknowledged that they came to the attention of the child protective authorities when the three year old called the police, after she left them unattended. Within eighteen months of having  her children returned, the respondent again was found to be abusing cocaine. The girls, then five and six years old, were returned to their aunt's home. The agency planned to once again reunite the respondent with her children. However, for the next three years, from June 1999 until her arrest in July 2002, the respondent was "not ready to commit" to her recovery. Consequently, she was unable to recover her girls from her sister's custody. In early   2000, the respondent was enrolled for a week in detoxification and then for a month in an upstate rehabilitation program. She was referred to an outpatient program upon her return to Brooklyn. Instead of attending, she continued to abuse cocaine. She did not maintain contact with her children or with the agency, until giving birth to Ronald H. with a positive toxicology for cocaine in September 2001. Following that event, the respondent was enrolled in an inpatient program, Pride Site II. She was required by this court to attend the program, based upon the finding of neglect as to Ronald, and as a condition of being reunited with him. She was being considered for a mother-child placement when she left against clinical advice. She continued  to abuse cocaine, until her arrest for felony possession in June 2002. At the time she was pregnant with her fourth child.

The respondent's success in refraining from using cocaine over the past year is commendable, especially in light of the history of past unsuccessful interventions. Abstinence from cocaine use is certainly necessary to being able to care for her children. The mother's present sobriety is not sufficient in itself, however, to warrant a suspended judgment. [See, e.g., Matter of Ada M.R.,     A.D.2d    , 760 N.Y.S.2d 802, 2003 N.Y. Slip Op. 15156 [4th Dept. 2003]] The respondent contends that her current recovery is evidence that she is motivated to continue in recovery by her desire to be reunited with her children. Significantly, that motivation has existed since the girls initially were placed in their aunt's home more than four years ago. The same motivation existed at the time she resided in the Pride Site program, when she could have been reunited with R. While the respondent has done well in her present program, her attendance was required    by the criminal term of the Supreme Court until June 26, 2003, as alternative to prison.    Certainly, the prospect of incarceration also must have been a principal motivation for the respondent's recent progress. The mother's compliance with the Brooklyn Treatment Court's mandate is a necessary precondition for any consideration of a suspended judgment. Completion of the court mandated program alone is not sufficient to demonstrate that a suspended judgment is in the best interests of the children. [See, e.g., In the Interest of J.M.C., 201 Ga.App. 173, 410 S.E.2d 368 [Ct. App. Ga. 1991]]

Although she has fulfilled all of the requirements of the Brooklyn Treatment Court, the respondent continues to be in need of ongoing residential treatment. Given the respondent's lengthy history of addiction, the respondent's recovery is nascent. Within the period of a suspended judgment, the respondent may be expected to graduate from the program, provided she can find a residence with the assistance of her Section 8 voucher. She has a means of employment and day care for K. She also continues to struggle with "anger issues" and to be in counseling due to conflicts in her continuing relationship with Mr. H.. Mr. H. is himself a recovering addict who is the father   of the younger two children. Mr. H.'s child R was born positive for cocaine at a time after Mr. H. completed his drug treatment at Pride Site II. This history indicates that the respondent's relationship with Mr. H. is an ambiguous factor in the respondent's continuing recovery.

It is the court's judgment that in light of the respondent's history, the time frame of a suspended judgment is simply inadequate to ensure that the children would receive continued stability in their mother's care. Assuming that the children's reservations about  their mother's reliability may be overcome by family therapy, and that their relationship with their aunt could be preserved through frequent visits, the court finds the prospects of the mother's continuing recovery to be uncertain. The children's need for the emotional security which they derive from continued stability, must receive paramount consideration at this stage of the process. Therefore, the court finds by a preponderance of the evidence that the children's interests would best be served by freeing them for adoption by their maternal aunt.

Custody and guardianship of the chidren are committed to the Commissioner of the Administration  for Children's Services, and his agents including the petitioner, with authority to consent to the adoption of the children without the further consent of the respondent mother. The foregoing constitutes the opinion and decision of the court.

/sg/ Lee Elkins, JFC