Matter of Christian
Cite as: Matter of Christian, B-16256/11, NYLJ 1202583307606, at *1 (Fam., KI, Decided September 10, 2012)
Judge Daniel Turbow
Decided: September 10, 2012
For Petitioner: Leake and Watts Services, Inc., Emily O'Brien, Esq., Rosin Steinhagen Mendel, New York, NY.
For Petitioner: Little Flower Children and Family Services of New York: James Cortazzo, Esq., Carrieri and Carrieri, Mineola, NY.
For Respondent, Mohammed A.: Gemma Thomas-Ahyase, Esq., Brooklyn, NY.
For Respondent, Tynisha D.: Zainab Akbar, Esq., Brooklyn Family Defense Project, Brooklyn, NY.
For Subject Child, Christian M.: Winsome Rhudd, Esq., Brooklyn, NY.
For Subject Child, Elijah A.: Lance Kramer, Esq., Brooklyn, NY.
DECISION & ORDER
Elijah A., who was born on October 24, 2007, has been in foster care under the auspices of Little Flower Children and Family Services of New York ("LF") since July 24, 2009. His biological father is Mohammed A. and his mother is Tynisha D. Christian M., who was born on August 25, 2009, has been in foster care under the auspices of the Leake and Watts Services, Inc. ("LW") since his birth. His legal, but not biological,1 father is also Mohammed A. and his mother is Reason M. The instant proceedings were brought pursuant to section 384-b of the Social Services Law ("S.S.L.") by the respective agencies to terminate the rights of the children's parents so that the children can be adopted. The proceedings were consolidated for fact-finding.
On June 15, 2012, following the fact-finding hearing, the Court stated its decision in summary form on the record. In essence:
(a) with respect to the child Elijah, we found that petitioner LF had proven by clear and convincing evidence that he had been permanently neglected by his mother, Ms. D., within the meaning of the S.S.L. We further found that Mr. A.
was a father whose consent was required for Elijah's adoption under Domestic Relations Law ("D.R.L.") §111(1)(d). We also concluded that the permanent neglect claim brought against Mr. A. required dismissal because LF had failed to prove by clear and convincing evidence that it had made "diligent efforts to encourage and strengthen the parental relationship" between Mr. A. and Elijah as required by S.S.L. §384-b(7)(a); and
(b) with respect to the child Christian, we found that the agency responsible for his care, LW, had borne its burden of proving that he had been permanently neglected by his mother, Ms. M. In addition, in contrast to our findings with respect to Elijah we concluded that LW had established that it had exercised diligent efforts to "encourage and strengthen" Mr. A's relationship with Christian but that the Father had nonetheless permanently neglected that child.2
We now set forth in detail our findings of fact and conclusions of law.
By way of context, as will be seen, the evidence presented against the mothers of both children is overwhelming and not difficult to apply to the established law. Similarly, the finding against Mr. A. with respect to the child Christian is based upon an application of straightforward legal principles to a set of facts that has not been subject to serious dispute.
By contrast, analysis of the facts and law as they apply to the case against Mr. A. regarding the child Elijah is not as facile.
In brief, the evidence establishes that Mr. A. had numerous issues, including periodic drug abuse, that served as a barrier to the return of Elijah to his care. LF did indeed refer him to
substance abuse programs to assist him in addressing that issue and did in other ways diligently seek to foster the parental relationship. However, the evidence presented by LF, particularly its case records, demonstrates that one of the agency's critical concerns was Mr. A's inability to manage his anger, as manifested by frequent uncontrollable and inappropriate outbursts against agency personnel and others. The evidence presented fails to persuade the Court by the necessary quantum of proof that it sought to assist Mr. A. in addressing that issue. In fact, it appears from the evidence that, although Elijah was placed in foster care in July 2009, and the father was regularly visiting with him and repeatedly sought to have him released to his care, it was not until November 2010 that LF plainly explained to the father why, notwithstanding his apparent completion of an anger management program, his continued inability to control his anger was a real obstacle to reunification. And, while LF contends that at some point it referred Mr. A. for a mental health evaluation which, presumably, could have resulted in a treatment plan to address the anger management issue, any such effort was too vague and imprecise to meaningfully satisfy the requisite clear and convincing standard.
II. PROCEDURAL BACKGROUND
On January 7, 2008, the Administration for Children's Services ("ACS") filed a petition (Docket No. NN-185/08) pursuant to Article 10 of the Family Court Act ("F.C.A.") with respect to Elijah. The petition alleged that Mr. A. had neglected the child, who was then two and a half months old, by engaging in acts of domestic violence against Ms. D. in Elijah's presence. It also alleged that Ms. D. had neglected Elijah by failing to enforce a criminal court order of protection which directed that Mr. A. stay away from her and Elijah. Upon the filing of the petition, Elijah was released to his mother under ACS supervision.
On July 24, 2009, ACS filed an order to show cause seeking Elijah's remand and permission to amend the petition. The gravamen of the application was an allegation that, on or about July 23, 2009, the child had been found, dirty and unkempt, under a bridge with his mother, while she and another man were having sex. The remand application was granted on the day it was sought and Elijah was remanded to foster care under the auspices of LF. An amended petition was subsequently filed adding the described allegations.
On October 23, 2009, approximately three months after his birth, an Article 10 petition was filed under Docket No. NN-30630/09, with respect to the child Christian against Ms. M., the child's mother, and Mr. A., alleged to be the child's father.3 The petition alleged that his parents were unprepared to care for him, used cocaine, and were not in drug treatment. Upon filing of the petition, Christian was remanded to foster care under the auspices of LW.
On October 6, 2010, the Court (McElrath, J.) ordered, pursuant to F.C.A. §1039(b), that
LW need not make further efforts to reunify Ms. M. with Christian due to the termination of her parental rights to Christian's sibling.
On November 5, 2010, the Court (McElrath, J.), conducted a fact-finding as against Mr. A. and an inquest as against Ms. M. on the allegations pertaining to Christian. The Court found that Ms. M. neglected the child by regularly misusing cocaine during her pregnancy, thereby causing Christian to be born with a positive toxicology for cocaine, and by failing to engage in drug treatment. As to Mr. A., the Court found that he neglected the child by misusing cocaine and that he knew or should have known that Ms. M. was doing so while pregnant. Dispositional proceedings were adjourned.
On November 12, 2010, in Elijah's case, the Court (McElrath, J.), made a finding of neglect against Mr. A. upon his admission that he neglected Elijah by committing an act of domestic violence against the child's mother, Ms. D., in front of the child. On November 18, 2010, upon her consent and pursuant to F.C.A. §1051(a), a finding was made that Ms. D. neglected Elijah by leaving him outdoors, unattended and dirty.
Upon the entry of the finding against Ms. D., the Court immediately entered a dispositional order placing Elijah in care until the next permanency hearing pursuant to F.C.A. §1055. The Court placed Ms. D. under ACS supervision pursuant to F.C.A. §1057, and ordered that she refrain from acts of abuse or neglect against the subject child, cooperate with ACS supervision, maintain adequate income and housing, enter a drug and alcohol treatment program, remain drug and alcohol free, comply and cooperate with existing services including, but not limited to, a parenting skills program and a domestic violence program, execute authorizations to allow ACS to monitor compliance with programs, visit with the child once per week, and to submit to a mental health evaluation and comply with any recommendations thereof.
Dispositional proceedings against Mr. A. were adjourned.
On November 23, 2010, LW filed the instant termination proceeding regarding Christian, alleging that the child had been permanently neglected by both Mr. A. and Ms. M.4
On July 12, 2011, LF filed the instant termination petition regarding Elijah. It alleged that Mr. A. was a father whose consent to Elijah's adoption was not required. It further alleged that both Mr. A. and Ms. D. had permanently neglected the child.5
On October 17, 2011, this Court entered the dispositional orders that remained outstanding in the Article 10 matters. Christian was placed in the care of the Commissioner of ACS, pursuant to F.C.A. §1055, until the next permanency hearing. His mother, Ms. M. was placed under the supervision of ACS pursuant to F.C.A. §1057 and required to undergo a mental health evaluation, engage in substance abuse and alcohol treatment, engage in parenting skills, maintain adequate housing and income, engage in domestic violence counseling, maintain consistent visits with the child and submit to ongoing random drug screening. In a consolidated dispositional order with respect to both children, Mr. A. was placed under the supervision of ACS pursuant to F.C.A. §1057 and required to complete domestic violence counseling, a long term substance abuse program and aftercare, demonstrate sobriety for at least 12 months, undergo a thorough mental health exam and participate in such counseling and mental health treatment as may reasonably be deemed appropriate.
III. THE FACT-FINDING HEARING
The termination petitions regarding both Christian and Elijah were consolidated for fact-
finding. Counsel stipulated that evidence proffered by either petitioner-agency could be considered upon the merits in the other petitioner-agency's case. The hearing began on March 29, 2012 and was completed on April 5, 2012.
Testifying on behalf of LF was Shavonne Ceruti, who was its case planner from July 2009 to September 2010. LW proffered the testimony of two case workers: Ms. Yolanda Jimenez, case planner from February 2010 until July 2010, and Ms. Shavonne Taylor, case planner from July 2010 until the filing of the termination petition on November 23, 2010. Admitted into evidence on behalf of both agencies, among other things, were their own case records, case records from the Taylor Mayd and Realization Center substance abuse programs attended by Mr. A., and certain of Mr. A's criminal records.
The Court took judicial notice of the orders and findings entered in the underlying Article 10 proceedings.
Mr. A. testified on his own behalf. Ms. D. did not. Ms. M. failed to appear for fact-finding.
Upon consideration of all the evidence, the Court makes the following findings of fact.
1. The Mother
As testified to by Ms. Ceruti, following the child's removal, the service plan created to permit reunification required that Ms. D. visit regularly, keep in contact with LF and keep it advised of her whereabouts, participate in domestic violence counseling, participate in a parenting skills program, and undergo a mental health evaluation. The evidence establishes that Ms. D. did not comply with this service plan in any substantive way and, indeed, had only sporadic contact with Elijah and LF, notwithstanding LF's efforts to facilitate the mother-child
Thus, for the month following Elijah's removal on July 24, 2009, Ms. D. had absolutely no contact with LF. A letter sent by the agency to her last known address was returned unopened on August 17, 2009, marked "return to sender." She had her first visit with the child on August 26, 2009. She arrived nearly 45 minutes late for her next visit on September 1, 2009. She then had no further contact with LF until April 2010. During that time her whereabouts were unknown to LF.
In April 2010, LF learned for the first time that the mother had been incarcerated since December 2009 at Rikers Island.6 There is nothing in the record to suggest that the mother sought to contact the agency prior to April 2010 even though the mother had been informed of the agency's address and the name of the case worker shortly after the child had been removed from her care.
LF arranged for Ms. D. to visit with Elijah at Rikers Island on April 12 and July 6. In July 2010, Ms. D. called Ms. Ceruti to inform her of her release from incarceration. Ms. D. then participated in a July 9, 2010 service plan review conference by telephone. She subsequently attended two visits with Elijah at the agency on July 20 and August 6, 2010.
At the July 9 conference, Ms. D. was told that she needed to submit to drug testing and complete domestic violence counseling.7 At that time, she indicated that she was living with an aunt in New Jersey until she could get a place of her own, and Ms. D's lack of housing became
an issue.8 At the August 6 visit, Ms. D. informed Ms. Ceruti that she was working with the Women's Prison Association to obtain housing. Ms. Ceruti referred the mother to a program called "Help Roads" to obtain domestic violence counseling, a parenting skills program and a mental health evaluation. An intake appointment for that program was scheduled for August 12, 2010.
There is nothing in the record to suggest that the Mother attended the intake appointment or otherwise participated in the required services. Indeed, although visits were scheduled, and LF attempted to reach the Mother by telephone at her last known number, the Mother had no subsequent contact with the agency until September 17, 2010. On that date she appeared, unannounced, and reported she was homeless. She was given referrals for shelter services and a metrocard for her next visit with Elijah.
The Mother next had contact with LF in Court on November 12, 2010, when she reported to the case worker that she still did not have permanent housing, did not wish to go to a shelter, and was unable to provide her precise address. She made no effort to attend any scheduled visits until December 16 and December 23 (which visits did not go forward because the child was not produced). Ms. D. then appeared for visits with the child on January 6 and January 20, 2011. She made no further visits and had no contact with LF until the termination petition was filed on July 12, 2011.
2. The Father
Introduced into evidence was Elijah's birth certificate, which named Mr. A. as his father.
As Ms. Ceruti testified, at the time Elijah was placed in care on July 24, 2009, LF determined that in order to be considered a resource for the child Mr. A. would be required to
visit regularly, keep the agency advised of his whereabouts, engage in domestic violence counseling for batterers, participate in anger management and parenting skills programs, and complete a mental health evaluation. Thereafter, the agency determined that he also had to complete a drug treatment program.
From the time Elijah was placed in care in July 2009 until December 2009, when he was incarcerated, Mr. A. had limited contact with Elijah. According to case notes, after Elijah's remand, he visited only on August 26, September 1 and September 4, and on December 3, 2009, when he also attended a family team conference. In addition, he arrived more than an hour late to the September 1 and 4 visits. However, both before July 2009 and after December 2009, he saw the child with some regularity and consistently sought to enhance their relationship.
After the Article 10 petition was filed in January 2008, and while the child was initially in the care of Ms. D., Mr. A. was only permitted to have visits supervised by ACS. However, on February 29, 2008, Mr. A. requested expanded visitation with Elijah and, on September 9, 2008, he was granted unsupervised visits of an hour a week, to be expanded to two hours upon certain conditions. Thereafter, on January 27, 2009, Mr. A. filed a motion requesting enforcement of the visitation order because Ms. D. had allegedly failed to produce Elijah for visits. Pursuant to an order issued on March 20, 2009, Mr. A's visits were again directed to be supervised. On August 4, 2009, just after Elijah's remand, Mr. A. filed another motion seeking reinstatement of unsupervised visits. That motion was denied after a brief court appearance on September 10, 2009.
On or about, December 9, 2009, Mr. A. was incarcerated at Rikers Island and called LF to inform it of that fact. On January 12, 2010, he had a visit with Elijah at that facility. Thereafter, until the instant termination proceeding was filed on July 12, 2011, he had almost
continuous contact with the child and LF, and with rare exception, visited the child at least monthly and sometimes with much greater frequency.
The case notes describing some of these visits reflect Mr. A's efforts to develop a strong, affectionate and nurturing relationship with Elijah. For example, the LF Case Note of an August 26, 2009 visit records that "Elijah appeared to be happy to see the birth father and easily went to him…Elijah was happy and smiling and running to [his father]." A February 22, 2010 LF Case Note describes a visit between Elijah and his father at McDonald's: "Birth father assisted child to try to write his name on a training sheet…. Child started crying towards the end of the visit and birth father walked child back and forth in the hallway…. Birth father did well caring for the child." Accounts of visits in the Spring of 2010 reveal that Mr. A. bought Elijah a toy car during one visit, went with him to a playground during a second visit, and brought a soccer ball to play with to a third. During a number of visits during the winter of 2011, Mr. A. took Elijah to the children's section of the library.
None of this is to say that Mr. A. did everything he could to spend time with Elijah or overcome the obstacles to reunification. Thus, he missed many scheduled visits.9 In addition, there were periods of time when he did not keep LF informed of his whereabouts or contact information. See e.g. LF Case Note 9/23/2009 ("The BF has had minimal contact with CP [Case Planner], however he has missed several visits though he's called to state that he was coming….CP also does not have a phone number for the BF to be able to contact him."). Most importantly, critically, Mr. A. suffered from a serious substance abuse problem, primarily involving cocaine, which he did not entirely overcome during the relevant period. LF did work
with the Father to address this issue.
The notes of a December 3, 2009 Family Team Conference at the agency reflect that Mr. A. expressed a desire to have Elijah "return to his care, and that he was remorseful for his past drug use." He was informed both of the importance of being consistent with visits and the need to participate in the drug treatment program named Taylor Mayd, in which he was then enrolled.10 However, almost immediately after that conference, Mr. A. was incarcerated.
Upon his release in February 2010, the father apparently reenrolled in Taylor Mayd. He was discharged on June 24, 2010 after, according to treatment program records, he used cocaine several times. Although Mr. A. returned to Taylor Mayd in August 2010, he was discharged again on or about September 24, 2010, as a result of testing positive for cocaine on September 23, 2010, interfering with the treatment of other patients at the program, and failing to attend individual counseling. Thereafter, he attended a detoxification program at the Kingsboro Addiction Treatment Center from approximately September 28 to October 21, 2010. Upon its completion the program recommended that he participate in an inpatient program at Phoenix House. Mr. A. declined to do so and, instead, began treatment at the Realization Center. However, he continued to drink alcohol (see e.g. Realization Center Note 1/24/11) while attending the program and, although he denied usage, he tested positive for marijuana as late as April 1, 2011.11
Nonetheless, while his substance abuse remained a matter of concern, it was clear from the time Elijah was placed in care that a primary obstacle to reunification was Mr. A's inability to
control his temper, as manifested by numerous outbursts of rage directed against the foster mother, LF personnel, and others.
The case records of LF are replete with examples of such behavior. For example, a LF Case Note dated July 24, 2009, the day of Elijah's removal from Ms. D's care, details Mr. A's outburst at a case worker in a public restaurant upon learning of the removal. Similar behavior manifested itself on a virtually continuous basis. See e.g. LF Case Notes 9/4/09, 12/2/10, 2/24/11, 3/3/11, 5/5/11. On several occasions these outbursts occurred in the presence of Elijah, causing him to become frightened and unhappy. See e.g. LF Case Notes 12/2/10, 3/3/11.12
The perception of ACS and LF about the importance of this type of behavior in the reunification process is described in a report prepared by ACS dated November 15, 201013 and submitted to the Court (McElrath, J.) in connection with an appearance in the dispositional proceedings in the Article 10 matter conducted on November 18:
Mr. A. has made efforts to maintain contact with Elijah, even during his incarceration and attends supervised visits regularly…. During visits at the field office, Mr. A. interacted well with Elijah…but there was concern about his interaction with adults. There were many incidents when Mr. A. became upset and reacted by yelling, cursing and threatening to hurt others. Visits at the foster care agency have been moved to the field office due to safety concerns-Mr. A. would become enraged and there were no officers present at the foster care agency. ACS officers are present at the field office.
Mr. A. completed a parenting skills class…on 10/20/08 and completed anger management on 6/14/08. Despite completing anger management, Mr. A. still has
bouts of rage and outbursts in which he yells, curses and needs time to cool off.
The November 15 report then recited the views of the LF case planner, Mr. Isaac Acheampong:
[S]upervised visits between Mr. A. and Elijah are positive. Mr. A. is good with Elijah, and he seems to love his son. Despite positive interaction during supervised visits, Mr. A's behavior is unpredictable due to his fits of anger and there is no way to guarantee Elijah's safety during unsupervised visits.
The report does make reference to Mr. A's history of drug abuse and his failure to complete a substance abuse program. However, from the report, as well as the case records, it appears as if Mr. A's anger issues had been recognized as at least as significant an obstacle to reunification as his drug use.
Notwithstanding LF's emphasis upon the issue, from the evidence it appears that it was only on November 18, 2010 that the Father was made plainly aware of how his anger actually impeded the process of reunification. It was then, apparently after that day's Court appearance and a visit with Elijah, that Mr. A. had a conversation with the ACS Child Protective Specialist ("CPS"), Ms. Sherisse Baptiste, that was recorded in the LF Case Note as follows:
Mr. A. asked CPS if the anger management and mental health evaluation were keeping him from unsupervised visits. CPS informed him that despite having a good relationship with Elijah, his anger and interaction with others is a concern. CPS acknowledged that Mr. A. completed an anger management course, but told him that his behavior does not demonstrate that he gained something from the course, especially if he curses and yells at people. CPS also informed him that his behavior is unpredictable and the agency has to feel confident in saying he could have unsupervised visits. CPS gave him an example of how he could engage in a conflict with someone else with the child present and it could turn into something he was not expecting because he does not know what others are thinking or carrying. Mr. A. understood what CPS was saying and stated he is willing to do another anger management course and a mental health evaluation.
The evidence presented at fact-finding regarding the efforts made by LF to formulate a realistic plan to address the father's anger management issues both before and after November 18 is weak. The agency was aware that Mr. A. had already completed an anger management course that had proved unavailing and that some alternative course of treatment required exploration.14 At the very least, Mr. A. should have been referred for a full mental health evaluation designed to ascertain why his rage occurred and an assessment about what, if anything, could be done to bring it under control. LF, however, did not take that step or otherwise address the problem in a meaningful way.
The first time Mr. A. was told that he was required to participate in a mental health evaluation was on November 18, 2010, when he was ordered to do so by the Court in conjunction with the disposition in the Article 10 proceeding. As noted above, he thereafter told the case worker he would do so. That evaluation never occurred, for reasons that do not appear to be in the record.15
The agency did encourage Mr. A. to attend the Realization Program, which he entered on or about October 25, 2010. That program was indeed designed to address both substance abuse and anger management issues. And, the program referred him for a psychiatric evaluation. He missed two appointments for such an evaluation, on December 18, 2010 and January 15, 2011, albeit on the second date he had the documented excuse of being hospitalized. However, Mr. A. shortly thereafter did participate in such an evaluation but apparently at no time was the
evaluator ever informed of the need to explore Mr. A's anger issues or suggest any course of relevant treatment.
Thus, according to the Realization Center16 Mr. A. submitted to two psychiatric evaluations conducted by a Dr. Folake Oshodi at the Realization Center on February 15, 2011 and May 14, 2011. However, instead of addressing the anger management concerns, the February 15 report identifies the chief psychiatric complaints as "hx of cocaine dependence and an open ACS case." The "Assessment/Plan" recommends "continued treatment at Realization Center," and further evaluation "if psychiatric symptoms change." The May 14, 2011 report likewise makes no mention of the anger issue and concludes simply that Mr. A. "does not require medication at this time" and is "to continue with groups and individual counseling."17
The other evidence regarding LF's efforts to assist the Father in dealing with this issue is likewise not persuasive and reflects a debilitating uncertainty on the part of the agency as to what was needed to achieve reunification. For example, on December 2, 2010 just two weeks after the mental health evaluation was ordered by the Court during a supervised visit at which both
the agency case worker and the ACS worker were present, Mr. A. became enraged about rules set by LF staff. The case worker noted that Elijah appeared frightened and became upset. Yet, despite the admitted inefficacy of the prior anger management program, the case worker reported that "birth father needs anger management training."18
On December 21, 2010, Mr. A. became "belligerent" during a meeting at which he requested a time frame for Elijah's return to his care and, specifically, requested unsupervised visits as a step toward that goal. According to the LF Case Notes, Mr. A. was told by Mr. Gyminah, the agency case worker, that he, Mr. Gyminah, needed to be in contact with various service providers already working with Mr. A. presumably at Realization Center and obtain permission to allow unsupervised visits from ACS. There was no mention of any necessity for Mr. A. to engage in other services or in a mental health evaluation.
The records submitted at the fact-finding also establish that LF encouraged the Father to have "therapeutic visits" with Elijah, which the Court had ordered in the context of one of the several applications arising from the Father's outbursts at visits. On February 2, 2011, Mr. A. was told by Case Planner Gail Woods that he would be assigned an agency19 which would provide therapeutic visits.20 Mr. A. reportedly argued that he had resolved "the problem he had with [the] agency" and therefore that he did not need therapeutic visits. The notes do not record any conversation in which LF explained to Mr. A. that the purpose of the therapeutic visits was, presumably, to address the impact of his emotional instability on his son rather than his conflict with the agency. In fact, the record does not contain any evidence which would suggest if, or
why, LF believed that therapeutic visits would address the fundamental underlying anger issue.
Nor is evidence of a realistic strategy to foster reunification with Elijah found in the somewhat contemporaneous service plan created by LW with respect to Christian. Rather, as will be discussed in further detail below, LW focused primarily upon Mr. A's drug abuse and his acts of domestic violence, and did not seek to address the anger issues that were the subject of LF's concerns.
Finally, as to the issue of whether Mr. A. provided financial support for Elijah, it appears as if the only evidence proffered by LF was the following single question posed to Ms. Ceruti and her response:
Q: Did he ever pay any financial support to you or your agency for the child that you're aware of ?
Transcript, March 29, 2012 (a.m.) at 25-26.
1. The Mother
The evidence at fact-finding establishes that Ms. M. never seriously planned for the return of Christian.
Aside from speaking to an ACS case worker in Court on October 28, 2009, there is no evidence that Ms. M. had any contact with ACS or LW after Christian's birth on August 25, 2009 until December 1, 2009. At a meeting held on December 1, 2009, LW outlined a service plan
for Ms. M. which included drug treatment, domestic violence counseling, a parenting program and regular visitation. Thereafter, she visited Christian on December 10, 2009 and then had no contact with him or LW until March 4, 2010.
All in all, notwithstanding the opportunity to visit on a regular basis, Ms. M. attended less than 10 visits from December 10, 2009 until she was incarcerated on August 19, 2010 on drug-related charges. She thereafter had one more visit with the child at Rikers Island prior to the filing of the termination petition.22 In October 2010, Ms. M. informed the LW case planner that she wanted to surrender her parental rights. Transcript, March 29, 2012 (a.m.) at 96.
In addition to their infrequency, the quality of the visits was poor. For example, on March 4, 2010, Ms. M. arrived 45 minutes late and fell asleep during the visit. In addition, Ms. M. often came with Mr. A. and the visits were regularly punctuated by grossly inappropriate hostile interactions between the two. See e.g. LW Case Notes 6/17/10, 5/6/10, 4/1/10.
Most importantly, Ms. M. never took any steps to overcome her exceptionally serious and long-standing substance abuse issues which she acknowledged and which continued throughout the period at issue.23 She refused LW referrals to drug treatment programs on several occasions, saying she would find programs on her own when she was ready. See e.g. LW Case Notes 12/1/09, 4/5/10. She never did.
As noted above, on October 6, 2010, Judge McElrath excused LW from continuing to make reasonable efforts to reunite Ms. M. with Christian, pursuant to F.C.A. §1039(b).
2. The Father
The evidence at fact-finding establishes that in contrast to his approach to Elijah, Mr. A. did not take steps that manifested either a genuine desire to develop and maintain a meaningful father-child relationship with Christian or an intent to obtain physical custody and raise the child.
There is no evidence in the record that Mr. A. attempted to visit Christian in the hospital or to arrange visits through LW following the child's August 25, 2009 birth until November 19, 2009, when he called the case planner. When the case planner told him he could visit the next day, Mr. A. did not call back to confirm. As a result, the first visit did not take place until December 10.24 He then did not see the child again until March 4, 2010.25
From that time until the filing of the termination petition on November 23, 2010, Mr. A's contact with Christian was, at best, sporadic. The agency sought to facilitate visits, and offered them to Mr. A. twice per week. He declined twice weekly visitation, apparently because of other obligations including scheduled visits with Elijah. Of the visits that were scheduled, Mr. A. regularly canceled them,26 arrived late,27 or simply did not appear.28 All in all, Mr. A. had only 15 visits of any time or quality whatsoever until the petition's filing.
Moreover, during this period of time, notwithstanding documented incidents of domestic violence perpetrated upon Ms. M. by Mr. A., and orders of protection prohibiting the parents'
contact,29 and notwithstanding Mr. A's repeated acknowledgments that Ms. M. used crack cocaine, he sometimes came to the visits with Ms. M. As a result, the focus of the visits often became the parents' dysfunctional interaction rather than their engagement with the child. See e.g. LW Case Notes 5/6/10, 6/10/10, 6/17/10, 8/19/10.
In addition, Mr. A. missed important planning meetings at the LW offices, sometimes even after he had confirmed that he would appear. See e.g. LW Case Notes 4/12/10, 4/22/10, 4/26/10. He did not make any specific plans for Christian's release to his care, refusing, for instance, to allow the case worker to conduct a home visit on March 10, 2010. Most importantly, although he stated at one point that "he would fight for his son," Mr. A. never affirmatively informed the agency that he wished to have Christian placed in his custody. Rather, he repeatedly represented that he was involved with planning for Christian to whom he is not biologically related because he wished to help the child's mother. According to the case notes, he told LW Case Worker Yolanda Jimenez and her supervisor, Ms. Rosenberg-Sica, the "he is not the Father of the child Christian M. He stated that he did it for love of Ms. M….." See LW Case Note 3/4/10. See also LW Case Note 2/2/10.
As will be discussed below, Mr. A's documented lack of commitment to Christian, requires that, although similar to that of LF, the LW service plan be examined under a different
lens. The LW service plan also focused primarily upon Mr. A's drug abuse. See LW Case Note 12/1/09 (documenting conference at which Mr. A's service plan included drug treatment and parenting). Accordingly, LW referred Mr. A. to Taylor Mayd, the drug treatment program with anger management and parenting components discussed above in the context of the case regarding Elijah. The evidence regarding his sporadic attendance at that program, his failure to complete the program, and his continued struggle with drugs, has been described. Suffice it to say for these purposes that LW, either independently or in collaboration with LF, encouraged Mr. A. to overcome his substance abuse issues but, on September 30, 2010 more than a year after the child's birth, and less than two months before the filing of this termination petition he acknowledged that he had smoked crack the week before.
As was LF, LW was regularly made aware of Mr. A's inability to control his anger. The case notes document observations of his and Ms. M's conflicts as well as uncontrolled outbursts against agency personnel, both in person and on the telephone. See e.g. LW Case Notes 2/18/10, 11/18/10. LW, like LF, failed to focus on that issue as an obstacle to Mr. A. being able to care for his child. Instead, as did LF, LW emphasized the need for Mr. A. to stay away from drugs and address his relationship problems with Ms. M., not to address any perceived mental health or generalized anger management issues.30
A. Permanent Neglect
As summarized by the Court of Appeals in Matter of Sheila G., 61 NY2d 368, 380 (1984):
The legal standard for "permanent neglect" as a basis for terminating a parent's right to a child, is codified at subdivision 7 of section 384-b of the Social Services Law. That statute provides, in relevant part, that a "permanently neglected child" shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period 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 when such efforts will not be detrimental to the best interests of the child.
In order to make out its claim under this statute, a petitioning agency must thus establish by clear and convincing evidence both that it (i) exercised the prescribed diligent efforts; and (ii) that the respondent parent failed to maintain contact or plan for the child's future. F.C.A. §§614, 622.
Given the exceptionally weighty interests at stake, application of the clear and convincing standard is constitutionally mandated. Santosky v. Kramer, 455 US 745 (1982). Lest the standard merely be paid lip service, it merits emphasis that its satisfaction requires much more than what is required to meet the standard generally applicable to routine civil matters and Article 10 proceedings:
A party who must prove his case by a preponderance of the evidence only need satisfy you that the evidence supporting his case more nearly represents what actually happened than the evidence that is opposed to it. But a party who must establish his case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what he claims is actually what happened.
Ausch v. St. Paul Fire and Marine Ins. Co., 125 AD2d 43, 45 (2d Dept 1987)(quotations omitted)
(emphasis added). Here, we find that the petitioners have satisfied their burden with respect to the mothers of Elijah and Christian and with respect to Mr. A. in his capacity as Christian's father. However, we cannot conclude that the evidence presented makes it "highly probable" that LF exercised diligent efforts to strengthen Mr. A's relationship with Elijah. Accordingly, that claim must be dismissed.
The evidence presented against Elijah's mother, Ms. D., was straightforward and compelling and supported by our application of the strongest possible negative inference we can draw by reason of Ms. D's failure to testify. See e.g. In the Matter of Amanda Ann B., 38 AD3d 537 (2d Dept 2007). As described above, that evidence established that Ms. D. visited the child only a handful of times during the two years he was in care prior to the petition's filing and that she failed to maintain regular contact with LF. Indeed, Ms. D. failed to have any contact with the agency for the extended periods of September 2009 until April 2010 and then again from January 2011 until July 2011.
These extended lapses in communication with the agency would warrant an excusal from the exercise of diligent efforts, see S.S.L. §384-b(7)(e).31 However, the agency did indeed utilize diligent efforts to assist the mother in addressing the issues that prevented reunification (including homelessness) through referrals to service providers.32 She failed to engage those providers and did not otherwise participate in any meaningful way in the prescribed service plan.
Upon these facts, a finding of permanent neglect is warranted. See e.g. In re Brooke Louise H., 158 AD2d 425, 426 (1st Dept 1990)(permanent neglect found where "the evidence demonstrated that petitioner arranged visitation and attempted to assist respondent in obtaining housing but respondent kept only four of thirty-six scheduled visits…and refused assistance in obtaining housing."). See also S.S.L. §384-b(7)(b)("[E]vidence 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.")
Perhaps even more compelling is the case against Christian's mother, Ms. M., who defaulted in appearing at the fact-finding and as against whom, as a result, the strongest possible negative inference has been drawn. Put plainly, she acknowledged that she suffered from a serious drug habit that prevented her from caring for Christian, but repeatedly refused to accept LW's referrals to drug treatment programs and failed to address the problem on her own. In view of her sporadic contact with the child and the agency, and her lack of commitment to the child as evidenced by her announcing a desire to execute a voluntary surrender so that the child could be adopted, a finding of permanent neglect is justified.
We now turn to the cases against the father and explain why we have held that the efforts exercised by LW to encourage and strengthen his relationship with Christian were legally adequate while those of LF to encourage and strengthen his relationship with Elijah were not.
The applicable statutes and case law make clear that the legal adequacy of the diligent efforts required by section 384-b cannot be evaluated in the abstract. Rather, those efforts must be examined in the context in which they are made.
Thus, as is pertinent here, the controlling statute defines "diligent efforts" as being: reasonable attempts by an authorized agency to assist, develop and encourage a
meaningful relationship between the parent and child, including but not limited to: (1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;(2) making suitable arrangements for the parents to visit the child…; [and] (3) provision of services and other assistance to the parents…so that problems preventing the discharge of the child from care may be resolved or ameliorated….
S.S.L. §384-b(7)(f)(emphasis added).
The appellate courts have concluded that in determining whether this diligent efforts requirement has been satisfied, one must look not only to the agency's conduct, but also to the parent's own commitment to the process of reunification. Thus, for example, as the Court of Appeals noted in Matter of Jamie M., 63 NY2d 388, 393 (1984):
In the statutory scheme for termination of parental rights, failure [by a parent] to cooperate with an agency is hardly without legal significance…. Parents must themselves assume a measure of initiative and responsibility; they have a duty to plan for the future of their child, and a failure to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources will be taken into account in determining whether parents have in fact met their statutory responsibility.
Accordingly, where a parent is "utterly un-co-operative or indifferent," the agency's obligations are satisfied merely by "embark[ing] on a diligent course." Matter of Sheila G., 61 NY2d at 385. See also In re Byron Christopher Malik, 309 AD2d 669 (1st Dept 2003). By contrast, where a parent does demonstrate a measure of commitment to regaining custody of the child, an agency must "determine the particular problems facing a parent…. and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps." Matter of Sheila G., 61 NY2d at 430 (emphasis added). See also In the Matter of Robert "F.", 195 AD2d 715 (3rd Dept 1993). Ultimately, the adequacy of an agency's efforts must be measured under a "rule of reason." In re Kaleemah Shaleah M., 6 AD3d 189, 191 (1st Dept 2004).
Application of these principles mandates the conclusion that LF has failed to prove, by clear and convincing evidence, that it satisfied its obligation to exercise diligent efforts with respect to Mr. A. and Elijah. Indeed, as will be seen, it failed in two critical aspects.
As discussed in detail above, Mr. A. made significant attempts over the course of many years to enhance his relationship with Elijah. He maintained contact with the agency, visited the child with some regularity and repeatedly petitioned the Court and LF to increase the frequency of the visits and to have them made free of supervision. He sought to maximize the quality of the visits by bringing the child gifts and taking him to the library. By all accounts, Elijah and Mr. A. demonstrated genuine reciprocal affection.
In addition, he repeatedly articulated a desire to assume custody of Elijah. To achieve that end, he completed certain of the services that LF prescribed, including parenting skills training, and on two occasions, anger management programs.
Given the Father's efforts, LF had the duty, in the language of the Sheila G. Court, to determine the "particular" problems that presented obstacles to reunification and to make "affirmative, repeated, and meaningful efforts" to help Mr. A. overcome them. See also In the Matter of Jesus "JJ.", 223 AD2d 955, 955 (3rd Dept 1996)(agency's plan must be "realistic" and "tailored to fit respondent's individual situation."). Insofar as it identified Mr. A's drug abuse as a critical problem and repeatedly referred him to rehabilitative programs, LF satisfied that obligation. However, by the agency's own account, an independent critical problem that obstructed reunification was Mr. A's frequently uncontrollable rage. The agency did not take adequate measures to address that issue.
As a preliminary matter, we note that independently of an examination of the referrals made by LF to deal with the issue, the agency failed in its statutorily prescribed duty of
"consultation and cooperation with [Mr. A.] in developing a plan for appropriate services to the child and his family…." As we described previously, although the issue had arisen long before, it was only on or about November 18, 2010 more than a year after Elijah came into care, and less than a year before the filing of the instant petition that LF informed Mr. A. that his anger management issues were a major obstacle to reunification and explained why. In other words, there simply was no "consultation" or "cooperation" with Mr. A. about this issue prior to that time. In this regard, it bears reiteration that when the issue was explained, Mr. A. immediately represented that he was prepared to address it by participating in another anger management course and undergoing a mental health evaluation.
Even if that failure on the agency's part was overlooked, LF did not prove by clear and convincing evidence that it took reasonable steps to help Mr. A. overcome his anger issues. The evidence plainly establishes that the agency knew that the measures it initially proposed, i.e., anger management classe? were inadequate. However, the next reasonable step referral for a mental health evaluation was not taken until November 2010 and, even then, the evaluations that were eventually conducted did not explore means of addressing the critical issue.
The fact that the father failed to overcome the obstacle of drug abuse notwithstanding the agency's reasonable efforts to assist him with that problem is not legally relevant. The teaching of the Court in Matter of Robert "F", supra, is particularly instructive in this regard.
In Robert "F," the agency had not facilitated travel arrangements which would have permitted the mother to visit with her children who lived approximately 20 miles away, and had not assisted the mother in obtaining larger housing that would have permitted home visits. The agency contended that the mother had not asked for travel assistance. In addition, it argued that there had been no need to assist the mother in obtaining larger housing because she had failed to
complete the alcohol rehabilitation program to which she had been referred, which was a precondition to reunification.
The Third Department rejected the agency's position. It concluded that even though the mother had indeed not completed a critical element of the service plan and had otherwise failed to take full advantage of opportunities to remain in contact with her children, the agency had nonetheless failed to meet its obligation to utilize diligent efforts to assist the mother in overcoming all obstacles to reunification. It thus affirmed the trial court's dismissal of the termination petition:
[P]etitioner did not make suitable arrangements to assure that respondent could carry out the visitation provisions of her service plan. Petitioner attempts to rely on respondent's failure to request assistance with transportation. Given the agency's superior position and ability, it was petitioner's obligation to assess the parent's needs and then take meaningful affirmative steps necessary to remove obstacles that stood in the way of effecting reunification of the family….
Moreover, although petitioner found that home visits would not be appropriate until respondent acquired larger living quarters, it did not assist her in doing so, assertedly because it wanted respondent to first complete a program of alcohol counseling…Respondent is clearly not without blame here; it is undisputed that she has failed to complete an alcohol rehabilitation program, a necessary prerequisite to the return of her children, and that she has been somewhat lax in her attempts to maintain contact with the children, even by mail or phone, when she was unable to visit them. Respondent has, however, completed a parenting course and she tried to secure better housing. Most importantly, it appears that despite not having successfully completed a rehabilitation program, respondent has refrained from drinking for several years and recognizes that her drinking poses a danger to her children. These are not the hallmarks of an utterly un-cooperative or indifferent parent who has absolutely frustrated the agency's efforts to fulfill its statutory obligations. In sum, the record does not warrant so drastic a result as termination of her parental rights.
195 AD2d at 715 (citations and internal quotations omitted).
In so holding, the Robert "F" Court was echoing the principles articulated by the Court of Appeals in Jamie M. There, the agency put into place a service plan which included requirements that the parents participate in family counseling and obtain suitable housing and a means of support. The agency arranged family counseling, but the parents' "cooperation [with that] counseling was sporadic at best." 63 NY2d at 392. Nonetheless, the Court concluded that the termination petition had to be dismissed because the agency had failed to satisfy its obligation to provide diligent efforts with respect to other components of the service plan:
What is missing from this record and what compels us to the conclusion that the petition must be dismissed, is any indication of agency efforts to address one of the underlying problems that beset these parents and kept them from regaining their child: essentially unemployment and financial instability, which stood in the way of their securing a decent place to live.
Id. at 394 (emphasis added).
Under the teaching of these cases, the fact that Mr. A. did not complete substance abuse treatment is not controlling. Because the agency failed to prove that it exercised diligent efforts to assist him in overcoming what it perceived to be a separate major obstacle to reunification, the permanent neglect claim must be dismissed.
We reach a different conclusion with respect to the case regarding Christian because Mr. A's own efforts at enhancing his relationship with that child were, in stark contrast to those regarding Elijah, grossly inadequate. When examined in that context, LW's attempts to foster the relationship and to assist Mr. A. in overcoming the obstacles to reunification were indeed reasonable and thus legally sufficient.
Mr. A. never demonstrated a genuine commitment to develop a meaningful relationship with, or to obtain custody of, Christian. There is no firm evidence to suggest that he even visited with the child before he was three months old or that he saw the child more than twice during the
first six months of the child's life. Although offered the opportunity to visit twice per week, he stated that other obligations only allowed him to come once per week, and he missed the vast majority of those weekly visits. While there was a period of a few months when he saw the child with some regularity, the quality of those visits was often poor, with his arriving late, or meaningful interaction with the child being preempted by quarrels with Ms. M.
Most importantly, although Mr. A. said he was going to "fight for" Christian, he made clear that his real interest was in assisting Ms. M., rather than obtaining custody for himself. Indeed, he failed to take the most fundamental step towards the possibility of the assumption of custody by missing conferences with the agency where the service plan was discussed and failing to cooperate when the agency sought to visit his apartment.
Against this backdrop, the fact that the agency focused its service plan upon the immediately apparent need for the father to overcome his substance abuse and domestic violence problems was entirely reasonable. The agency impressed upon Mr. A. the importance of addressing those issues and accordingly referred Mr. A. to Taylor Mayd, and regularly monitored his compliance. Mr. A., however, continued to use drugs during the entire relevant period, admitting shortly prior to the filing date that he had just used crack cocaine.
Under these circumstances, it is unimportant that LW failed to make the additional effort to deal with Mr. A's anger management issues that we believe should have been undertaken by LF. Unlike the case with Elijah, insofar as making a genuine attempt to obtain custody of Christian is concerned, Mr. A. was, functionally, an "uncooperative" and "indifferent" parent. Having embarked on a diligent course designed to achieve reunification, LW thus satisfied the requirements of section 384-b. Matter of Sheila G., supra. Because the evidence established that Mr. A., among other things, failed to overcome a substance abuse problem that precluded him
from caring for Christian, the agency has made out its claim of permanent neglect. See e.g. In re Jamel Raheem B., 89 AD3d 933 (2d Dept 2011).
We turn finally to LF's claim that Mr. A. is a father whose consent to the adoption of Elijah is not required under D.R.L. §111(1)(d). That section provides that consent to adoption is required of the father:
of a child born out of wedlock and placed with adoptive parents more than six months after birth, but only if such father shall have maintained substantial and continuous repeated contact with the child as manifested by: (i) the payment by the father of support of the child of a fair and reasonable sum, according to the father's means, and either (ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.
LF rests its argument upon the assertion that Mr. A. failed to satisfy the requirement that he pay support for Elijah. There are a host of reasons why we reject the claim.
We note as a prefatory matter that in In re M./B. Children, 7 Misc 3d 272 (Family Ct., Kings County 2004)(Freeman, J.), the court found that application of the statute in the manner urged by LF was constitutionally prohibited. There, as here, an agency sought a declaration that a father was not a "consent father" because he had not been married to the mother at the time of the subject children's birth and, among other things, had not paid support for the children while they were in foster care. Judge Freeman reviewed the statutory scheme, which unqualifiedly and automatically granted a child's mother and married father the status of "consent" parent but denied comparable status to unmarried fathers unless they satisfied the requirements of section
111(1)((d). In a carefully reasoned decision, after analyzing the applicable teaching of the Supreme Court and the Court of Appeals, she concluded that the extent of a father's rights must be judged by the nature of the relationship the father has with the child, not merely upon whether he was married to the mother or complied with the particularized mandates of section 111(1)(d):
The actual bond between father and child is quite distinct from the legally recognized relationship, and can be established by married and unmarried fathers alike. Granting the right to consent to married fathers without additional requirements to demonstrate a "substantial" or "significant" relationship to their children, while imposing such requirements on unwed fathers, discriminates against men who cannot unilaterally change their married/unmarried status….
To impose the requirements in subdivision (1)(d) to [respondent], when they are not required of mothers and married fathers, would, in this Court's judgment, constitute denial of equal protection based on sex and marital status.
Id. at 281-282. See also Caban v. Mohammed, 441 US 380, 393 (1979)(Court declared D.R.L. §111, as then written, unconstitutional: "The effect of New York's classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child….. Section 111 both excludes some loving fathers from full participation in the decision as to whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers."); Matter of Raquel Marie X., 76 NY2d 387, 401 (1990)(In discussing the rights of the father of a child who was placed for adoption at birth, Court holds that, "When an unwed father promptly commits himself to custody [,] in adoption proceedings by strangers he is entitled to the constitutional due process and equal protection guarantees accorded other parents before his rights are terminated.")
Accordingly, upon the facts presented in In re M/B Children, where the father had a longstanding and meaningful relationship with several of his children, Judge Freeman held that his
right to consent to adoption could not be constitutionally diminished by literal application of section 111(1)(d).
Were we required to address the issue here, we would likely reach the same conclusion as did Judge Freeman. As we have noted, Mr. A. was named as the father on Elijah's birth certificate. He has had a longstanding relationship with the child and has made significant efforts to enhance it. To deny him status as a "consent" father solely because he was not married to Elijah's mother and did not pay support does not appear to be legally justifiable.
Nonetheless, we recognize that New York's appellate courts have not yet ruled on the constitutional issue and have continued to sanction application of section 111(1)(d). See e.g. Matter of Andrews Peter H.T., 64 NY2d 1090 (1985). Accordingly, we decline to reach out to address the question because there are several separate independent grounds upon which LF's case falls, even assuming the possibility of the statute's constitutional application to the presented facts.
There appears to be some inconsistency in appellate rulings regarding which party bears the ultimate burden of proof with respect to whether a father is a "consent" parent. Compare Matter of Charle Chiedu, 87 AD3d 1140, 1141 (2d Dept 2011)("The biological father failed to meet his burden of establishing that he maintained substantial and continuous or repeated contact with the child through the payment of support and either regular visitation or other communication with the child.")(citations omitted) with In re Dominique P., 14 AD 3d 319, 320 (1st Dept 2005)("Even though petitioner withdrew its [permanent neglect] claims against appellant under Social Services Law §384-b, it continued to bear the ultimate burden to establish the factual basis for dispensing with appellant's consent.")(citations omitted) and In re Dominique P., 24 AD3d 335, 336 (1st Dept 2005)("Family Court correctly determined that
petitioner [agency] bore the initial burden of going forward with evidence to show that appellant [father's] consent to the adoption was not required, but that appellant had the ultimate burden of persuasion to show that his consent was required.")(citations omitted). However, regardless of who bears the ultimate burden, it is plain that at the very least the agency has the initial burden of going forward. Id. LF failed to satisfy that burden.
The "burden of going forward" requires, at a minimum, the submission of proof that makes out a prima facie case with respect to the contested point at issue. See,, e.g., People v. Abdul-Akim, 27 Misc 3d 1220(A), 2010 NY Slip Op 50814(U) (Sup Ct., Kings County)(2010) ("At a Mapp/Dunaway hearing, the People have the burden of going forward to establish facts which demonstrate that the arrest of the defendant was supported by probable cause and that the contested evidence was legally obtained. In effect, the People's proof must make out a prima facie case."). See generally Kamins, New York Search & Seizure, §7.08. As we have described, the only evidence presented by the agency regarding whether the Mr. A. paid support was a single question and answer, and even that exchange was hardly presented with a tone of ringing persuasiveness. That hesitant, hearsay-grounded answer can hardly be deemed sufficient. See Balboa Insurance Co. v. Alston, 141 AD2d 364 (1st Dept 1988)(failure to satisfy burden of going forward with respect to establishing insurance coverage where evidence presented was hearsay.).
We note too that even this evidence dealt only with the issue of support during the time that Elijah was in foster care. In our view that is inadequate Although the statute is silent about the precise time period during which the support obligation must be scrutinized, we do not think a fair construction would permit it to be limited, as a matter of law, solely to the time the child was in foster care. The purpose of the statute is to provide a mechanism by which to test the
depth of a father's relationship to a child. See Matter of Andrew Peter H.T., supra, 64 NY2d at 1091 (By section 111(1), "the Legislature established guidelines for determining whether the father of a child born out of wedlock has demonstrated a substantial relationship with his child, giving him a right to veto the child's adoption."). We can readily envision a circumstance where, for example, a child has lived with and been supported by a father for years, and would plainly qualify as a "consent" father under the statute. However, under the agency's view, were the child then removed to foster care, and were the father then fail to pay support for some period of time, his "consent" status could be entirely destroyed. Neither common sense nor the law could sanction such a result.
Accordingly, in a case such as this, where Elijah was not placed in foster care until he was more than one and a half years old, and where LF, as an agent of the government arm that brought the Article10 proceeding, knew or should have known of Mr. A's prior relationship with the child,33 it was incumbent upon LF to meet its burden of going forward by presenting at least some evidence to suggest that Mr. A. did not pay support prior to Elijah's placement.
Moreover, even if the support obligation was relevant only to the period after Elijah was placed in care, and even if the agency had satisfied its initial burden, LF's claim would still lack merit. The courts have recognized that the failure to satisfy the statutory support obligation is not "determinative if it is explained." Matter of M, 39 AD3d 754, 757 (2d Dept 2007)(citing Matter of Corey L. v. Martin L., 45 NY2d 383 (1978); Matter of Madeline S., 3 AD3d 13 (1st Dept
2003). Any failure by Mr. A. to pay support can be explained by the evidence of record that suggests he was essentially impoverished during the time under scrutiny. As discussed above, he apparently was living in a barely furnished apartment, and had no steady means of support. Given that the statute requires only that a father pay support "according to [his] means," it cannot be said that it was violated by Mr. A. This is particularly true in view of the fact that Mr. A. brought gifts and food to the visits which, although not technically "support," did evidence a desire to provide Elijah with some comparable tangible manifestation of his subjective emotional commitment. See e.g. Matter of M., 39 AD3d 754, 757 (2d Dept 2007)(evidentiary hearing warranted to determine whether failure to provide support was sufficiently explained where father contended that he was "indigent and his attempts to send gifts to the children were refused by the proposed adoptive parents."); Matter of Jonna "H," 252 AD2d 839 (3d Dept 1998)(no finding of abandonment where, among other things, failure to pay support was explained by father's indigency, and father sent child birthday and Chirstmas cards and age-appropriate gifts.).
Finally, we think it appropriate to note that in view of the agency's conduct it would simply be unjust to deprive Mr. A. of his status as a "consent" father on the basis of his alleged failure to pay support while the child was in foster care. Over the period of two years, the agency led Mr. A. to believe that he had a right to have Elijah live with him if he demonstrated he were able to care for the child. There is nothing in the record to suggest that LF ever told him that all his efforts could be for nought if he did not pay support.
We recognize of course that a father is generally expected to provide support without being ordered to so, even while incarcerated. See e.g.In re Dakiem M., 94 AD3d 1362 (3d Dept. 2012); In re Norman Christian K., 60 AD3d 542 (1st Dept 2009). However, it is one thing for an agency, in a vacuum, simply not to inform a father of his support obligation. It is quite another
for it to refrain from any mention of the obligation during the planning process so as to lead a father to believe it is irrelevant to the expectation of reunification, and to then turn around and assert that the failure to pay support permits a critical diminishment of that father's parental rights. We find that under such circumstances the agency is equitably estopped from succeeding on such a claim. See e.g. Bender v. Health and Hospitals Corp., 38 NY2d 662, 668 (1976)("We believe that where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right or defense which it otherwise could have raised."). See also In the Matter of Sean Michael P., 56 AD3d 783 (2d Dept. 2008)(Father's consent to adoption required where, among other things, "the agency's conduct was somewhat misleading, and…The father maintained substantial and continuous contact with the subject child[,] filed for custody [and] provided the only type of financial support requested pof him." ).34
Ultimately, regardless of the theory applied, it would simply be unfair upon these facts to find that Mr. A's relationship with Elijah was of such limited significance that his consent to Elijah's adoption is not required. For the reasons stated, we decline to make such a finding.
The foregoing constitutes the findings of fact and conclusions of law of the Court. Appropriate orders shall enter.
1. See note 3 infra.
2. We also stated our finding that Mr. A. was not a father whose consent to Christian's adoption was required. Upon close review of the agency's pleadings, however, it appears that it never raised any claim seeking such a finding. Accordingly, that finding is vacated.
3. All parties acknowledged at the fact-finding hearing that Mr. A. is not Christian's biological father. However, an acknowledgment of paternity with respect to Christian was executed by Mr. A. and Ms. M. on August 30, 2009 and Mr. A. is named as the child's father on his birth certificate. Both these documents were admitted into evidence at the fact-finding hearing. Accordingly, all parties have correctly treated Mr. A. as the child's legal father notwithstanding the absence of a biological relationship. See F.C.A. §516-a.
4. An amended petition was subsequently filed. See note 5 infra.
5. The petition pertaining to Elijah and an amended petition pertaining to Christian, which was filed on February 22, 2011, both alleged that, pursuant to S.S.L. §384-b(4)(c), Mr. A's parental rights should be terminated because he suffered from a mental illness that precluded him from caring for the child. On October 17, 2011, those claims were withdrawn upon receipt of a mental health evaluation performed by the Court's mental health clinic.
6. The record does not reveal how that information was obtained.
7. According to the testimony of Case Worker Ceruti, the agency and Ms. D. discussed the service plan for the first time during the summer of 2010, approximately a year after Elijah's remand. Because Ms. D. had no contact with the agency from approximately September 2009 through April 2010 and she remained incarcerated until July 2010, this does not appear to be a failure on the part of LW.
8. Ms. D. provided evidence at the conference that she had completed a parenting skills program while incarcerated.
9. Some of these missed visits were a result of his repeated incarcerations. He was incarcerated from December 2009 until February 2010. He was incarcerated again in June 2010 and released on or about July 29, 2010. He was then incarcerated again on or about April 28, 2011 for a few days.
10. Apparently, he was referred to that program by LW, as part of case planning with respect to Christian.
11. The records entered by LF at fact-finding do not provide any proof of cocaine use by Mr. A. after September 2010. However, records recently submitted in the dispositional proceedings in Christian's case evidence that he tested positive for cocaine in April 2011.
12. Conduct of this type caused the agency, on May 5, 2010, to move in the pending Article 10 proceeding to suspend the supervised visits. The application was denied, but the visits, which had previously taken place at the LF offices, were moved to an ACS facility.
In addition, as will be discussed later in the text, at various times during the period Elijah was in care, it appears as if Mr. A. engaged in acts of domestic violence against Ms. M., the mother of the subject child Christian, and that they fought during visits with that child.
13. The report is reproduced in the LF Case Notes and admitted into evidence as LF's Exhibit 2.
14. In a case note dated February 2, 2010, LF and LW case workers agreed that "while he completed DV & anger management, he will need more services."
15. Ultimately, the matter was reassigned to the undersigned and a dispositional order as to Mr. A. was entered almost a year later without the submission of any such evaluation. A mental health evaluation was conducted by the Court's Mental Health Services as a result of claims by the petitioners here that Mr. A. suffered from a mental illness that justified termination of his parental rights under S.S.L. §384-b(4)(c). Upon receipt of the report of that evaluation both agencies withdrew their mental illness claims. See note 5 supra.
16. Although both agencies only asked the Court to consider particular portions of those records on their direct case, the records were admitted in toto as LW Exhibit 6.
17. According to a January 26, 2011 note from the Certified Alcohol and Substance Abuse Counselor assigned to Mr. A's case at Realization Center, which appears to refer to the February 15, 2011 evaluation with Dr. Oshodi, Realization Center's referral to Dr. Oshodi stemmed from the need to assess Mr. A. prior to "any decisions regarding a higher level of care" for his drug addiction.
The two other "evaluations" referenced at the fact-finding likewise failed to focus on the critical issue of anger management. For example, LF submitted an October 2010 document titled "comprehensive evaluation" from Realization Center, apparently generated upon Mr. A's entry into the program. This document, signed by a Certified Alcohol and Substance Abuse Treatment Counselor, focuses on Mr. A's drug addiction. Mr. A. also testified about an independent evaluation he received from a "Dr. Reyes," of an organization called "SEL." It appears as if that evaluation was sent to the Realization Center and, according to a January 25, 2011 case note in the Realization Records, Mr. A. was told by the program case manager that he was required to follow up with all psychiatric recommendations. However, there is no evidence of record that establish Dr. Reyes' credentials, the purpose of the evaluation, or the recommendations.
18. Mr. A. did in fact complete another anger management program at the Realization Center. See Respondent Father's Exhibit 1.
19. Upon making the referral the case worker was told there was a three-month long waiting list.
20. Mr. A. was also told that he would have to engage in a parenting skills class "in order to have visits." As previously noted, he had already completed a parenting skills class.
21. The evidence demonstrates, in fact, that Mr. A. was impoverished throughout the relevant period. Upon inspection of his home, he had very few belongings. See LW Case Note May 22, 2010; See also LW Case Note August 11, 2010. He admitted on the record that he stole for drug and food money. He also testified that he had difficulty paying for train fare for various appointments. Further, he was unemployed throughout most of the relevant period, although he did obtain a street vendor's license at some point.
22. There were three occasions on which Ms. M. arrived at LW to find that the visit had been canceled: once when Christian was ill; once when when Christian had already left with his foster mother because Ms. M. was late; and once when the visit had been rescheduled. See LW Case Notes 3/8/10, 4/5/10, 8/12/10.
23. The LW case planner, Ms. Taylor, testified that she saw the mother at her home in August 2010, intoxicated, with a liquor bottle in her hand. When asked by Ms. Taylor whether she would go to a substance abuse program, she said she would go "when she was ready."
24. Mr. A. and Ms. M. met with LW social workers for the first time on December 1, 2009. See LW Case Note December 1, 2009. A visit was then set up for December 10, 2009.
25. As noted previously, Mr. A. was incarcerated at Rikers Island from approximately December 17, 2009 until February 8, 2010. He declined the opportunity to visit Christian at Rikers Island because he thought it would be bad for the child's health. On February 8, 2010 he was released from jail, contacted LW and a visit was scheduled for February 18. Mr. A. then canceled it, ostensibly because of a job interview. A subsequent effort to schedule visits was unsuccessful because the telephone number he provided to the agency was not working.
26. See e.g. LW Case Notes 4/15/10, 8/12/10, 9/17/10.
27. See e.g. LW Case Notes 5/6/10, 6/17/10.
28. See e.g. LW Case Note 7/15/10.
29. See LW Exhibit 7 which contains an order of protection issued by Kings County Criminal Court, dated December 17, 2009, which requires Mr. A. to stay away from Ms. M., a Kings County Criminal Court Complaint which describes a December 4, 2009 incident in which Mr. A. was accused of slamming Ms. M's head against a concrete wall, and a Kings County Criminal Court Complaint describing a April 24, 2010 incident in which Mr. A. was observed arguing and struggling with Ms. M. despite an order of protection forbidding him to have contact with her. See also Petitioner's Exhibit 8 which contains an order protection dated July 22, 2010 forbidding Mr. A. from contact with Ms. M., as well as a superceding information dated July 7, 2010 which charges Mr. A. with criminal contempt in the second degree for violating an order of protection forbidding him to have contact with Ms. M. and a certificate of disposition noting that Mr. A. pled guilty and was sentenced to jail time on the information.
30. See e.g. LW Case Note May 14, 2010 (memorializing a conversation between the LW Case Planner and the assigned CASAC in which they identify the obstacles to reunification as drugs and Mr. A's relationship with Ms. M.) & LW Case Note June 18, 2010 (memorializing a conversation between Mr. A. and LW staff identifying the same issues to address).
The November 10, 2010 addendum to a Family Treatment Conference memo produced after a discussion between Mr. A. and LW staff described the circumstances which placed Christian at risk of harm as follows: "Mr. A. has a criminal history and served time in prison. He was released under the condition that he attends a inpatient substance abuse program. Mr. A. also has a long history of substance abuse, [lack of ] anger control, and domestic violence and he lacks parenting skills techniques." It reported that Mr. A. should "complete his [drug treatment] program and obtain adequate housing if he is interested in providing permanency for the child."
It did not discuss means to address the anger management issue.
31. Ms. D. contends that the agency could have located her when she was incarcerated and that her failure to remain in touch with the agency during that period should therefore not be held against her. The law, however, is otherwise. See e.g. In re Marie Luz C., 6 AD3d 304 (2d Dept 2004).
32. Ms. D. suggests, without any evidentiary support, that the agency's efforts were somehow inadequate because they failed to incorporate "a safety plan," which would permit Ms. D. to assume care of Elijah without fear of violence or interference from Mr. A. Given the mother's failure to engage the agency and her failure to comply with a referral for domestic violence counseling, that argument is unavailing.
33. We note that the original Article 10 petition alleged "upon information and belief" that:
On or about January 4, 2008 [when the child was just over two months old], Respondent mother was observed by [the ACS case worker] to be giving the subject child to the Respondent Father with full diaper bag [and] stroller….[S]he has been….allowing the Respondent Father to visit with both she and the subject child, and allowing the Respondent Father to take sthe subject child from the shelter where she currently resides for overnight visits.
34. Indeed, the assertion of such a claim in this manner may very well be precluded by the constitutional principles of due process that must ultimately control the government's conduct in this sphere. See Lehr v. Robinson, 463 US 248, 261 (1983)("[W]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood…his interest in personal contact with his child acquires substantial protection under the Due Process Clause…."). For it has long been held, albeit in a somewhat different context, that under the Due Process Clause a person may not be deprived of a liberty interest for failure to obey a law or rule of which he has had inadequate notice. See e.g. U.S. v. Dane, 570 F.2d 840, 843 (9th Cir.)("It is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty.")(citing Bouie v. City of Columbia, 378 U.S. 347 (1964); Connally v. General Construction Co., 269 U.S. 385 (1926)); People v. Simone, 2 Misc. 3d 469 (Sup. Ct., New York. County. 2003).