New York Family Law Blog
No: GO53597 Fourth Dist. Division Three
This case is an appeal by the mother of a three-year-old child, and the Social Services Administration (SSA). The mother’s petition for a Writ of Mandate from an order terminating reunification services and setting a Welfare Institutions hearing pursuant to code section 366.
Allegations
Social services filed a dependency petition regarding a minor that was 3 years old. The petition said the minor had cut her finger on a broken beer bottle while playing in a flatbed truck. The mother took the child to the emergency room, where they noticed the child had numerous sores around the genitals and buttocks. The child had not had her vaccinations or any child well baby checks.
The mother was known to have unresolved anger management issues. The mother had previously been convicted of domestic violence. She also had a history of methamphetamine use. She had been using two weeks prior to this incident. At the time, she was testing positive for the narcotics and was not going to meetings. She has a history of spousal battery, vandalism, and drug possession.
Subsequent to the ER visit, she was ordered to have the child’s sores treated, and make sure that it was healed.
At the first hearing, the court ordered that the minor be detained. A report was made that the reunification possibilities for this family were few, and counseling was recommended.
Six months into this time period, the SSA recommended terminating reunification efforts, as the mother had only minimally complied.
The mother was arrested and placed on probation. She was sentenced to 16 months in jail, and was expected to serve 8 months.
This was the turning point for the mother, and she began to attend drug and parenting classes.
The court sided with the SSA, and said the mother’s efforts were minimal and hollow. Her visitation was sporadic.
Although she took advantage of every service during her last three months of the 6-month period and they felt empathetic, but are constrained by an evaluation of the statutory and case law.
Discussion
Welfare & Institution Code 366.21 in essence states that if a there is a child under three years old, and there is clear and convincing evidence that the parent has not been fulfilling their responsibilities, the court may schedule a hearing.
In determining whether the reunification process is a success, there is a two-step analysis. The court must determine whether the parent failed to participate in their recovery. If so, the court may cancel the reunification services and schedule a .26 hearing. This is provided unless there is a probability that the disposition of the child may be determined in 6 months, and if not the court will schedule a 12-month permanency hearing (336.21 (e)(3). The court describes this step as inquiring “whether there is a strong likelihood of a possibility of return (MV v Superior Court 2008). It requires a probability of a possibility.
The court agreed that the prior court had incorrectly employed the wrong standard. The court put too much emphasis on the 2nd part of the test.
Courts look to what it means to regularly make “substantive progress in court ordered treatment plan” (366.21 (e)(3). Court determined that the mother did participate in the treatment plan, albeit the last three months.
During the hearing, the court asked the mother to cite a particular step out of the 12 step program and she was unable to do so. The court said that upon review this was not clear and convincing evidence of lack of progress.
The court felt that in the big picture, there had been progress. While there is no doubt there is a substance abuse problem that needs to be addressed, she did make efforts to care for the child (taking the child to the ER, for instance). Substance abuse alone is not enough of a reason to take the child away (Welfare and Institutions Code Sec. 300 (b)(1).
The court vacates the prior order that terminates the reunification services and sets a new hearing to extend reunification services for 12 months.
Family law matters are stressful and the consequences life changing. If you have a problem relating to a divorce, custody matter or child support dispute, it is important to speak with experienced legal counsel. Contact Stephen Bilkis and Associates for a free consultation. There are offices to serve you in Manhattan, Queens, the Bronx, Brooklyn, Staten Island, Nassau County, Suffolk County and Westchester County. Call today for a free consultation at 1-800-NYNYLAW.