New York Family Law Blog
A New York Family Lawyer said that in July 2007, the Nassau County Social Services (SS) filed petitions against the respondent , seeking the removal of her two children. On the same date, the respondent filed petitions seeking the return of her sons pursuant to FCA § 1028. A hearing was held and respondent’s return petition was denied and the children remained in the custody of the Social Services.
A Nassau County Family attorney said that, the respondent consented to a finding of neglect in the underlying neglect petition. A New York Custody Lawyer said that the Order of Custody to SS was vacated, a one year Order of Supervision was entered and the children were returned to the respondent. The terms of the Order indicated that the respondent was to cooperate with SS and Preventive Services, and attend the PACT program. The respondent voluntarily placed the children in foster care, as she reported to be suffering from depression at that time. The children were placed in the home of a certified foster parent, where they continue to reside. The two children were three years old and ten months old at the time that they were placed in foster parent’s home.
The respondent gave birth to her third child. Thereafter, SS filed a neglect petition against the respondent, on behalf of this child. A Bronx Family Lawyer said the Children Services additionally filed neglect petitions against the respondent in Queens County, where the respondent had been living, regarding the same child. The Queens County Court paroled the child to the non-respondent father, with supervision by Children Services. Additionally, the Court issued a Temporary Order of Protection, which vacated the respondent from the home, prohibited the respondent from having any contact with the child if under the influence of drugs or alcohol and only allowed for agency supervised visits. Upon consultation with this Court, the case was transferred to Nassau County Family Court.
Later, the maternal grandmother filed for custody of the children, child visitation was granted by the Court. SS filed petitions to terminate the respondent’s parental rights, based on permanent neglect, with regard to the children. A Bronx Child Custody Lawyer said the respondent gave birth to her fourth child. The child remained in the hospital until mid-October, 2009. SS filed applications to have this child removed. The Court granted the application, and a neglect petition was filed against the respondent. An Order of Filiation was entered on admission, a the child’s father. He took custody of this child.
An inquest was held as to the respondent’s termination of parental rights proceeding regarding the children. A warrant for the respondent had previously been issued, and remained outstanding. This Court found, by clear and convincing evidence, that the respondent permanently neglected her two children. A dispositional hearing was scheduled.
The respondent appeared and the warrant was vacated. The respondent failed to appear and a warrant was again issued. The respondent returned on the warrant. Thereafter, the respondent consented to a finding of neglect with regard to the children. These children were adjudicated neglected and a Final Order of Supervision and Order of Protection were issued for twelve months. The terms of the Order of Protection required that the respondent stay away from the children if under the influence of alcohol and illegal substances and that she was not to be alone with the children.
In the joint hearing, the SS seeks the termination of parental rights of the respondent, based on permanent neglect, while the maternal grandmother seeks custody of her two grandsons. SS does not support custody to the grandmother as she had a prior indicated case in 2001 where the respondent was the subject child and as three of the grandmother’s four children have criminal records. The respondent seeks a suspended judgment in the Termination of Parental Rights petition and supports her mother’s petition for custody of her sons.
The Attorney for the Children also supports the grandmother’s custody petition. While the foster mother did not file her own custody petition, she did participate in the proceedings.
At the fact-finding portion of this termination of parental rights case, this Court found by clear and convincing evidence, that the respondent mother permanently neglected her children, as defined in Social Services Law § 384 b (7) (a) in that by “failing for a period of more than one year, following the date that the children came into 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.”
After a finding of permanent neglect, the disposition of custody is influenced or controlled by what is in the best interests of the child, in accordance with Family Court Act § 631 which states, “An Order of Disposition shall be made pursuant to this section, solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition”.
Social Services Law § 383 (3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of twelve months or more, while members of a child’s extended family are given no special preference with regard to custody. Thus, a non-parent relative takes no precedence for custody over the adoptive parents selected by an authorized agency.
This Court had the unique opportunity to observe the witnesses who testified in this proceeding and was able to observe the demeanor and assess the credibility of each witness. It is clear that although the maternal grandmother of the two subject children does not give her rights superior to those of the foster mother, as she did not file for custody of the boys until fourteen months after they were in care and residing with the foster mother. She claimed that she delayed seeking custody because she hoped her daughter would plan for the children. She also claimed she was caring for her ailing mother. Neither explanation is sufficient. As she acknowledged that she was aware that her grandsons went into foster care, it is clear that she did not make them a priority at that time.
By failing to step up earlier, she. allowed a strong emotional bond to form between her grandson’s and foster parent with whom the subject children have continuously resided. The children were only three years and ten months old, respectively, at the time they were placed with the foster child. They have been in her care for three years; which is half of their loves. It is likely that foster parent’s home is the only home that they can remember, most certainly in the case of the younger child. The evidence shows that the foster parent has provided a stable and secure home for both boys, providing for their emotional, developmental, medical and educational needs. She has participated in these proceedings and has expressed her interest in adopting the children.
It is clear from the testimony of the maternal grandmother, and the testimony of the respondent, that it is their intention to have the respondent involved in the lives of these two children and as such, seek a suspended judgment for the respondent.
A suspended judgment may be warranted in a case where a parent has demonstrated that she is working toward the return of her children. The parent would have to show that she has complied with requirements to correct the issues that caused the children to go into foster care in the first place.
Here, the respondent has failed to demonstrate that she should be granted a suspended judgment. The caseworker for SS, reported that the respondent needed to attend mental health counseling, comply with psychiatric appointments and substance abuse treatments. The respondent was also encouraged to visit regularly with her children. She testified that the respondent last visited with her sons in April 2009, more than a year prior to the filing of the Termination of Parental Rights petition. She also reported that while the respondent did initially get psychiatric treatment, she did not complete her treatment. As a result, the Hispanic Counseling Center closed her case due to non-compliance.
The respondent has failed to take any of the necessary steps to avoid having her rights terminated. She has not sought the assistance of the SS, gone for counseling, mental health services, or substance abuse treatment. Since the time that the children went into foster care, in December 2007, the respondent had numerous opportunities to work with SS, but failed to do so. In fact, the respondent was out on a warrant and her whereabouts unknown for months before returning and participating in the dispositional hearing.
That the grandmother and the respondent intend for the respondent to be involved in the lives of the children causes great concern. The respondent has taken no steps to improve herself or show the Court that she is either ready or capable of either visiting or parenting these children. As such, it is not only contrary to the best interests of the children to have the respondent in their lives, but detrimental and disruptive to their emotional well-being.
While she may love her grandsons, and wants to care for them, it is clear to this Court that an additional motivation in seeking custody is to circumvent the termination of her daughter’s parental rights. To grant grandmother’s custody petition would put the children in danger, as it would allow for contact with the respondent without supervision or oversight by the SS. This would create a situation where the children would be wholly unprotected. Additionally, the respondent’s warrant history demonstrates her failure to understand the magnitude of these proceedings and shows a severe lack of concern for her children. She is clearly unreliable. To create a situation where the children are left hoping and guessing as to when they will see their mother, only to be disappointed, is not in their best interests.
Having heard all the testimony, as well as, having met with the children in camera, the Court is certain that the children have a strong bond with foster parent. The children, are healthy, happy and well provided for in the care of foster parent to uproot the children and remove them from th only home they can remember, and where they have stability and security, would be traumatic and not serve their best interests.
After due consideration of all the evidence, this Court makes a finding that it has been established, by a preponderance of the evidence, that the best interests of the boys are that they remain in the care and custody of the SS and in the home of the foster parent.
Children of tender years should be loved and parents should take care of them. Here in Stephen Bilkis and Associates, we help those neglected children to seek recourse to their negligent parents. With the help of our Nassau County Family attorneys, we will file the support actions to ask for support from the parents. We also have our Nassau County Child Visitation lawyers who will inform you of your rights as a parent once a divorce decree has been issued by a court. Contact us now.