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Department of Social Services Files Petition to Remove Child from Home

A New York Family Lawyer said that, on or about July 5, 2007, the Nassau County Department of Social Services (hereinafter “DSS”) 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 on July 24, 2007 respondent’s return petition was denied and the children remained in the physical custody of DSS.

A New York Child Custody Lawyer said that, the respondent consented to a finding of neglect in the underlying neglect petition. The Order of Custody to DSS 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 DSS and Preventive Services, and attend the PACT program. Thereafter, 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 first subject child was three years old and the other was ten months old at the time that they were placed in the foster parent’s home.

A Bronx Family Lawyer said that, the respondent gave birth to her third child, Emma P., on October 10, 2008. On February 9, 2009, DSS filed a neglect petition against the respondent, on behalf of this child, in Nassau County. On February 25, 2009 the Administration for Children’s Services (hereinafter “ACS”) 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 ACS. 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 on or about April 2, 2009.

A Bronx Child Custody Lawyer said that, on February 26, 2009, the maternal grandmother, filed for custody of the children. Visitation was granted by the Court. On July 10, 2009, DSS filed petitions to terminate the respondent’s parental rights, based on permanent neglect, with regard to the children. On August 19, 2009, the respondent gave birth to her fourth child. The child remained in the hospital until mid-October, 2009. DSS filed applications to have this child removed. The Court granted the application on October 15, 2009, and a neglect petition was filed against the respondent on October 20, 2009. An Order of Filiation was entered on admission, on February 2, 2010, naming as the child’s father. He took custody of this child on June 10, 2010. On December 4, 2009, an inquest was held as to the respondent’s termination of parental rights proceeding regarding the subject child. A warrant for the respondent had previously been issued on October 2, 2009, and remained outstanding. This Court found, by clear and convincing evidence, that the respondent permanently neglected her two children. A dispositional hearing was scheduled.

A Nassau Child Custody Lawyer said that, on February 9, 2010, the respondent appeared and the warrant was vacated. On July 14, 2010, the respondent failed to appear and a warrant was again issued. The respondent returned on the warrant on October 1, 2010. On March 11, 2010, the respondent consented to a finding of neglect with regard to the children. On June 10, 2010, 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. This dispositional hearing as to the termination of parental rights and fact-finding hearing as to custody, regarding the children was held on June 1, 2010, June 2, 2010, June 29, 2010, June 30, 2010, July 1, 2010, September 2, 2010 and December 6, 2010. During a great deal of the proceedings the respondent was not present and warrants were issued for her appearance. On the dates that she was not present, the hearing went forward in her absence.

The issue in this case is whether the subject children should be removed from the custody of their parents on the ground of neglect and abuse.

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 physical 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, this alone does not give her rights superior to those of the foster mother, as she did not file for full custody of the boys until fourteen months after they were in care and residing with the foster mother. The latter claimed that she delayed seeking full 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 the foster parent 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, the foster parent allowed a strong emotional bond to form between her grandson’s 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 parent. They have been in her care for three years; which is half of their life. It is likely that her home is the only home that they can remember, most certainly in the case of the younger child. The evidence shows that she 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 both 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 DSS 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 DSS, 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 DSS, 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 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 the grandmother may love her grandsons, and wants to care for them, it is clear to this Court that an additional motivation in seeking full custody is to circumvent the termination of her daughter’s parental rights.

To grant to the grandmother the petition would put the children in danger, as it would allow for contact with the respondent without supervision or oversight by the DSS. 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 the foster parent. The children are healthy, happy and well provided for in the care of her. To uproot the children and remove them from the only home they can remember, and where they have stability and security, would be traumatic and not serve their best interests.

Accordingly, the court held that the Department of Social Services’ petitions to terminate the parental rights of the respondent, with regard to the subject children, are hereby granted, and it is further ordered that the petitions seeking custody of the same subject children are hereby denied, and it is further ordered that, the physical custody of the subject children, shall remain with the Commissioner of the Nassau County Department of Social Services.

If a child is being subjected to abuse and neglect seek the help of a Nassau Order of Protection Attorney and Nassau Child Custody Attorney at Stephen Bilkis and Associates in order to protect the child.

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