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Social Services Seeks Guardianship and Custody of Children


A New York Family Lawyer said this is a petition brought by an authorized agency under Social Services Law § 384-b[7] seeking to commit the guardianship and custody of the children, A (d.o.b. 1/14/91), B (d.o.b. 3/6/94), and C (d.o.b. 6/14/01) to the agency for the purpose of consenting to the adoption by their foster mother, who is their mother’s sister.

The respondent M is the children’s mother. The respondent F is the children’s father. The children came into foster care in July 2001, following C’s birth with positive toxicology for heroin. The children were then placed following the mother’s admission to neglect based upon heroin addiction.

The court at the time of placement in November 2001, directed that the mother enter an inpatient drug program and complete a parenting skills class.

A New York Child Custody Lawyer said meanwhile, the children have been continually in foster care since that time. The period at issue is from August 2001 until 13 September 2003 when the petition was filed.

Petitioner entered into evidence, portions of the case record beginning in late August 2001 through 11 September 2003. A Bronx Family Lawyer said entries in the case record in evidence occur about once a month but there is no complete record of events occurring over any continuous one year period. However, the petitioner did call the worker who was assigned to the case from April 2002 until June 2003.

Upon showing of the record pertinent to respondent M’s inpatient drug program and complete parenting skills class, it is undisputed that the court’s order in the underlying neglect proceeding required that the respondent enter a residential drug program. A hat this was appropriate is apparent from the mother’s testimony that she had been in Kings County Hospital’s outpatient MICA program, and that she continued to purchase heroin and prescription drugs on the street.

A Bronx Child Custody Lawyer said the progress notes reflect that the respondent mother was enrolled in a seven day detox facility in early November 2001. The entry notes of the case worker stated this was a great start; however, it was just the first step. The respondent mother then stated that she was scheduled to attend a 28 day detox at Staten Island University. The SPR of 9 January 2002 acknowledged that the respondent completed the detox, and concluded that the respondent needed to enter and complete a residential drug treatment program.

In late January the assigned case worker asked the mother whether she had entered SIU’s rehabilitation program. The respondent stated that she was waiting for a bed. In late February the case worker again met with the respondent mother “to discuss referrals.” However, the case worker merely asked the mother whether she had gone “to detox.” No referral was made for any program, residential or otherwise. There was no discussion about SIU.

There is no evidence in the case record that any further discussion about referrals occurred in March or April 2002. Although the single April note in evidence is signed by the case worker who testified that she was assigned the case in that month, she also testified that she did not meet with the mother until August 2002. On 22 May 2002, the case worker’s supervisor met with the mother. She informed the mother that the case worker would be making referrals, and that the mother should continue to seek housing and to maintain regular visitation with the children. The supervisor also informed the respondent “about ASFA” and that her parental rights could be terminated. There are no progress notes in evidence for June through October, 2002. There is no evidence of an SPR held six months after the prior SPR in January.

Respondent mother admitted to the case worker she used heroin and Ambien which she purchased on the street and that she was in a methadone maintenance program. She was referred to Cumberland Diagnostic and Treatment Center, an outpatient program, on 18 September 2002. This is the first evidence of any referral by the agency.

The children had been in foster care for almost 14 months around this time of referral. The case worker acknowledged that there were difficulties with this referral, aside from it being an outpatient program. The respondent told the case worker that she did not want to go to Cumberland because she was taking prescription medication for depression. Subsequently, the respondent told the case worker that she did go to Cumberland, but had problems with her Medicaid. There is no evidence that the case worker investigated or addressed either of these problems.

The case worker testified that the respondent told her that she wanted to go to Staten Island University Hospital. This is the facility where she had been scheduled to complete the 28 day detox. According to the case worker, she called SIU but they “didn’t take her.” The case worker did not explain the failure of SIU to accept the mother.

She then referred the respondent to Project Return [Palladia], in the Bronx, which treats patients taking antidepressants. Project Return was also an outpatient program. She also testified that she gave the mother the referral on 2 October 2002 for an appointment two days later. The case worker testified that when she asked the respondent mother about Project Return, the mother stated that they put her in detox and “threw her out within a week because she had no Medicaid.” In fact, the case worker was informed by the mother that although she had Medicaid, her HMO would not pay for inpatient treatment.

The supervisor was with the mother again on 27 November 2002. The mother asked the agency to refer her to Veritas, a program she learned about through a friend. She told the respondent that she would call the program to make a referral but that’s if it was an outpatient program, the respondent would have to be referred to an inpatient program as per court order. The supervisor told the respondent that she would find out if parenting and therapy would be available at Veritas, and if not she would be referred for those services. On December 11, the respondent received a referral for Veritas Therapeutic Community, Inc. “for residential drug treatment, individual counseling and parenting skills.” The letter states that the appointment is for December 13. There is no evidence in the record that the respondent ever was referred to an inpatient program prior to that date.

The supervisor observed that the respondent had no income and lived with her mother. However, the progress note also reflects that the respondent had gone to PA the previous week and “had to go back.” This is consistent with the mother’s testimony that when her PA was interrupted she requested a fair hearing and had it re-instated. The progress note also reflects that the respondent filed out a NYC housing application. The supervisor “encouraged” the respondent to continue to plan. Nonetheless, in a note of January, 2003, the supervisor states that the “status of the case” as of 31 December 2002 “continues to be adoption.”

On 29 January 2003, the agency supervisor received a call from a Visiting Nurse Services. She informed the supervisor that the mother was to be discharged from Interfaith Hospital’s seven day detox program on Friday (January 31), and requested “information regarding Veritas drug treatment and the availability of a bed” for the respondent. The supervisor gave the caller the name and telephone number of a person to contact at Veritas, so that the respondent could be admitted for treatment. Two days later, she again called the agency to inform them that the mother, having finished the seven day detox program at Interfaith, needed to enter a 28 day rehab before she could go to Veritas. She informed the agency supervisor that the respondent “cannot do the 28 day program because she did not keep her appointment at EVR on 1/23 and her PA case has been closed. The supervisor, simply stated that “this has been an ongoing issue with” the respondent.

The court notes that there is no indication either in the progress notes or in the testimony of the case worker that this “ongoing issue” was ever addressed by the agency in any meaningful way. On this occasion, the court notes that the case worker apparently missed the fact that the mother may have been in the detox program since January 23. The birth mother was advised to go to her PA office to reinstate her benefits and was even given car fare to keep the appointment given, but she has not followed through.

The court finds that the preponderance of the evidence8 establishes that the mother did in fact follow through, and that the issue was the Medicaid coverage, and not the lack of Medicaid. The respondent testified without contradiction that she had gone to PA and that her benefits were reinstated after a fair hearing. She also testified that she never told the agency that she didn’t have Medicaid. The petitioner failed to adduce any evidence that the mother’s Medicaid was not active.

The court notes that, apparently, the respondent had the means through public assistance to retain a visiting nurse. The supervisor told the agency supervisor that she would assist respondent mother to re-open her case but once the case is re-opened she would have to do another detox and rehab program before being admitted to Veritas. The significance of this evidence is that if VNS could assist the mother to determine and to correct the problem with her Medicaid coverage, then the agency also could have done so. There is no evidence in the record, however, that the supervisor was in fact able to provide assistance to the respondent with her Medicaid problem. Subsequent events show that the problem remained unresolved.

The case worker acknowledged that the respondent told the agency she was having problems with her HMO, and that every time she went into detox she would have to leave earlier than the program recommended. The mother testified to the same effect. The case worker testified that she did not contact Medicaid or give the mother a letter for Medicaid. In the case worker’s view, it was respondent’s responsibility to follow through with Medicaid. She acknowledged that there is no one at the agency with expertise in Medicaid. Her response to the respondent mother’s Medicaid problem was to refer the mother to St. Vincent Service’s mental health clinic, which she testified either included outpatient drug counseling or would refer the mother to a program. She believed that the clinic might be able to assist the mother with Medicaid, since there was no one at the child protective agency with expertise. The respondent testified without contradiction that she went to the St. Vincent’s clinic and explained about her Medicaid problem. She was told to complete intake and that they would “see what they could do.” The mother testified without contradiction that when she completed intake, they wanted her to attend their outpatient program, which conflicted with her methadone maintenance program.

The court credits the respondent mother’s testimony that she did go to Medicaid, and spoke to a case manager. The mother’s version of the events is corroborated by the agency’s contemporaneous record. The progress notes of the SPR state that the mother is not enrolled in drug rehabilitation, parenting or counseling but is enrolled in a case management program to assist with obtaining drug program with her HMO/Medicaid.

In the next case note entry another case worker wrote that the mother “stated that she was still having trouble with her HMO and that she is only allowed a certain amount of days in a program that the HMO will pay for. The case worker’s response was to inform her that the case worker would “check with Veritas to see if they will consider her for their program.”

When another supervisor took over the case in August 2003, she reminded the respondent that the court ordered her to enter a residential drug program. The mother then provided her with precisely the same information she provided to her previous case worker a year earlier. When asked what medication she was taking, the mother told the case worker that she had been prescribed Paxil by her doctor. She also informed her as she had informed he previous case worker that she would buy Ambien and sometimes methadone off the street. The mother admitted that she last used heroin on 4 July 2003. The respondent mother told the case worker that she wanted to be drug free, including from methadone. She provided the case worker with an appointment letter for NADAP Project ACE, and with certificates from Cornerstone detox and an unidentified “short term program.”

Presumably, this is the short rehabilitation program that the respondent mother testified to having attended. The circumstances of her attendance are undisclosed on the record. The case worker told the mother that the service plan also included completion of a parenting skills program and attending individual therapy. The respondent explained to the case worker that she was enrolled in an HMO that does not pay for these services.

The case worker informed the respondent that she would locate programs that would accept her without traditional Medicaid. The case worker then contacted the St. Vincent’s clinic, and referred the respondent there. This is precisely what he previous case worker did and to the same effect. St. Vincent’s told her that the respondent could walk in for intake any day of the week. Unlike the previous workers, this case worker for the first time referred the respondent mother to Dr. White Community Center, where the mother could receive parenting skills and counseling, without traditional Medicaid. The agency filed the petition two days later.

The court takes judicial notice that under Social Services Law section 364-j, Medicaid beneficiaries in New York State must join a Medicaid Managed Care Plan. Those who do not make an election within sixty days of receiving notice to do so, the State will automatically enroll in an HMO. Once enrolled, the person has ninety days to opt out or is locked in for twelve months. The participant is thereafter required to receive medical assistance services from a managed care provider. The “managed care provider” “provides or arranges for the provision of medical assistance services and supplies to participants directly or indirectly (including by referral), including case management.” [SSL 364-j [1][b][emphasis added]] This statute explains the entry in the agency case record of 7 May 2003, that the mother “is not enrolled in drug rehabilitation, parenting or counseling [but]… is enrolled in a case management program to assist with obtaining drug program with her HMO/Medicaid.”

Under the managed care statute, substance abuse services are considered “special care” [SSL 364-j [1][k]], and are to be provided through a “specialty care center,” “accredited or designated by an agency of the state or federal government or by a voluntary national health organization as having special expertise in treating the disease or condition for which it is accredited or designated.” The court also takes judicial notice of that those who receive services in a residential substance abuse program are exempt from enrollment in an HMO and may choose not to enroll. [SSL 364-j[3][c][i]] Consequently, had the respondent mother been able to enroll in a residential program, she would have been exempt from the HMO limitation, by statute. It appears, therefore, that there was in fact a mechanism by which the managed care issue could have been addressed through Medicaid.

The court defines a “permanently neglected child” as one “in the care of an authorized agency and whose parent has failed for a period of more than one year substantially and continuously or repeatedly to maintain contact with or plan for the future of the child notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship.”

Here the petitioner bears the burden of proving by clear and convincing evidence that the respondent permanently neglected her children by failing for a period of more than a year following their placement into foster care, “substantially and continuously or repeatedly” either to maintain contact with the children or to plan for the future of the children, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship.

As a threshold to proving permanent neglect, the petitioner must prove by clear and convincing evidence that it applied diligent efforts “to assist, develop and encourage” a meaningful parent- child relationship by offering appropriate services to the respondent parents, including by consulting and cooperating with the parents in developing a plan of appropriate services; making suitable arrangements for visitation providing services and other assistance to the parents to resolve or ameliorate the problems preventing the child’s discharge from care; and keeping the parents informed of the child’s progress, development and health.

The Court held that the diligent efforts requirement is a condition precedent which the agency must prove before the court may even consider whether the parent has met his or her duty to maintain contact with and plan for the future of the child. The agency’s obligation was described by the Court as follows:

To enable a child to return to his or her family, an agency must have the capability to diagnose the problems of the parent and of the child; access to a host of concrete supportive and rehabilitative services; cooperation with community treatment programs (such as health, alcohol, and drug treatment); and a casework staff that can motivate the parents to avail themselves of services…. lower courts have recognized that an agency is in a superior position to the parent with respect to the planning factor. The parties are by no means dealing on an equal basis. The parent is by definition saddled with problems: economic, physical, sociological, psychiatric, or any combination thereof. The agency, in contrast, is vested with expertise, experience, capital, manpower and prestige. Agency efforts correlative to their superiority are obligatory…. The corollary to the agency’s dominant position is that indifference by the agency may greatly serve to impede a parent’s attempts at reunification…. Of course, transcending the practical reasons for providing a threshold requirement that an agency exercise diligent efforts toward reuniting parent and child is the strong public policy that before the State may terminate parents’ rights it must first attempt to strengthen familial ties.

The court finds that the agency failed to make reasonable efforts to assist the mother to obtain the essential medical and therapeutic service needed to resolve or ameliorate the problems preventing the children’s discharge from care. Although respondent was denied public assistance for non-compliance with the application requirements, petitioner failed to instruct her as to the appropriate procedures. In our view, petitioner failed to prove that it exercised the meaningful and diligent efforts required to assist respondent in overcoming her problems and to reunite her with her child, as required by statute. Respondent did complete one 28-day treatment program but that she has not successfully completed longer courses, although she has received some substance abuse counseling. Despite petitioner’s recognition of this being the primary problem, its sole assistance to respondent in this regard was to advise her that she must complete a substance abuse program.

The petition is dismissed.

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