Posted On: December 28, 2013 by Stephen Bilkis

Child Removed by Protective Services Due to Parent's Drug Use

A man is the biological father of a boy who was born in 1995. A New York Family Lawyer said the two have never lived together. Three weeks following his birth, the child was removed from his mother's home by the Child Protective Services Unit of the County Department of Social Services (DSS) due to the fact that the mother had used cocaine during her pregnancy and the child tested positive for cocaine at birth. The mother was found to have neglected the child and her parental rights were ultimately terminated upon a finding of abandonment.

A New York Custody Lawyer said within one week following the child's removal by DSS, the father filed the first of a series of petitions seeking child custody. A July 6, 1995 consent order granted the father supervised visits with the child upon his completion of a substance abuse evaluation and also provided that the father was to cooperate in obtaining a psychological assessment. On March 16, 1998, the father filed the petition in proceeding No. 1.

At the initial appearance on the petition following the appointment of counsel for the father, Family Court adjourned the matter so that the father could undergo a psychological evaluation. At the next appearance, DSS recommended, and Family Court ordered, that an extensive family assessment be conducted at Parsons Child and Family Center and also that the father submits to a full mental health evaluation. Although expressing considerable frustration with the repeated obstacles that Family Court was placing in his path, the father agreed to cooperate.
Finally, in an appearance, the father's counsel expressed dissatisfaction with a continuation of the outstanding visitation arrangement, which permitted the father only one hour of supervised visitation each week. Those comments caused Family Court to recall some prior occasion when the father had called him and other court personnel "white devils" and then pointedly ask whether the father wanted to continue with supervised visitation at the Center for Children. The father responded by expressing the belief that he was not being treated fairly in Family Court and the desire that the matter go to the Court of Appeals in front of another judge. Based upon that statement, the Family Court summarily dismissed the petition. The subsequent order of dismissal recited that the petition was dismissed because petitioner has withdrawn the petition and does not wish to cooperate with services at the Center for Children. The father appealed.
In January 1999, DSS filed the petition in proceeding No. 2 seeking to terminate the father's parental rights pursuant to Social Services Law based upon the father's alleged failure, from the birth of the child in 1995 through the filing of the petition, to plan for the future of the child by failing to meaningfully, substantially or consistently participate in the various programs that had been dictated by DSS and Family Court and, in fact, in continuing to deny that the programs were necessary. At the ensuing fact-finding hearing, the father's counsel made an opening statement outlining the father's defense that he had continuously shown an interest in obtaining child custody, that he had never been charged with abuse or neglect of any child and that he was contesting the basis over which DSS and Family Court had imposed the conditions which he is presently charged with refusing to comply with and which form the basis of the petition. Nonetheless, DSS offered no evidence of any objectionable conduct on the father's part or demonstrated deficiencies in his parenting ability that would have justified the services that were ordered by Family Court. Further, although the father and his counsel made repeated efforts to establish the absence of any such factors, Family Court strictly limited the hearing evidence to the issue of the extent of the father's participation in mandated services during the six-month period immediately preceding the filing of the petition.

At the conclusion of the fact-finding hearing, Family Court made a summary finding of permanent neglect, setting forth the rationale that considering the father's failure to utilize available services and his failure to take steps to correct problems which initially led to the child's removal the testimony amply demonstrates the father's failure to plan for the future of his child. A Queens Family Lawyer said the father appeals the ensuing dispositional order which terminated his parental rights.

Family Court's fundamental error (and DSS' complicity cannot be overlooked) in both proceedings was in impliedly charging the father with conduct committed by the mother. In fact, the records in these proceedings reveal no evidence that the father would not be a proper custodian for the child or that the child would be at risk in his custody. A Queens Child Custody Lawyer said to the contrary, despite Family Court's limitation on the evidence received, the record generally supports a finding that the father is qualified to serve as a custodian for the child.

The father reports that he completed his drug treatment and has the proper documentation corroborating this claim. He also has completed parenting classes and he reports a satisfactory status with the prevention program at the Center for Children. This consultant became puzzled then by the decision of others i.e. the court, DSS as well as the mother and her family to either prevent or limit the father's contact with his sons. The assessment was received by Family Court on the same day that it dismissed the petition in proceeding No. 1.
Proceeding No. 1 is governed by the fundamental premise that a natural parent has a claim to the custody of his or her child superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood. Therefore, DSS having made no demonstration (or even allegation) of the father's surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances justifying the State's intrusion into the family domain, there was no valid basis for denying the petition.

In addition, although Family Court had authority to order the father to submit to a psychological examination, it had no right to require him to participate in supervised therapeutic visitations as a condition precedent to the entertainment of the merits of the custody petition. But for the fact that the child has now been in foster care for nearly five years, albeit through no fault of the father, the County Court would reverse Family Court's order in proceeding No. 1 and make an award of custody to the father. At this stage, however, the County Court believe that the matter should be remitted to Family Court for an expedited hearing and determination as to whether the father is a fit parent and entitled to custody of the child.

In proceeding No. 2, the critical issue is whether DSS met its burden of establishing that the plan it prescribed for the father was realistic and tailored to fit his individual situation. As earlier noted, DSS made no effort to satisfy that burden and Family Court repeatedly thwarted the father's efforts to establish the lack of any reasonable basis for the plan that was put in place. Of course, given that the child never was taken from the father and no valid reason has been shown for denying the father custody in the first instance, DSS had little hope of identifying any circumstances preventing the return of the child to his custody. The issues identified in the petition, such that the father never had custody of the child and his history of alcohol/substance abuse, lack of parenting skills and failure to consistently visit the child, all relate to matters that had no valid basis in fact, were wholly outside the father's control or had no realistic bearing on his competence as a custodial parent. Obviously, the petition should have been dismissed at the conclusion of DSS' case, if not earlier.

Children rely on their family to take care of them and provide them with all their needs. If the court finds either parent unfit to gain child custody, a child would be taken care of by someone else. In times like this, a Nassau County Child Support Lawyer together with the Nassau County Child Custody Attorney from Stephen Bilkis and Associates can help you fight for your right as a parent.