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Court Rules on Domestive Violence Case


A father filed two motions with respect to the termination of his parental rights. Among other things, the father argued that relevant provisions of family laws, which sets out the requirements for an unwed father to have veto rights over his child’s adoption, is constitutionally infirm because it denies him equal protection and due process based on distinctions by gender and marital status.

A New York Custody Lawyer said that according to the facts of the case, the child was born with a positive toxicology for opiates, which resulted in her remaining in the hospital for over a month due to withdrawal symptoms. When the child was released from the hospital, a government agency conducted an emergency removal, and thereafter, the child, pending the resolution of a neglect petition filed against her parents, began to reside with her current non-kinship foster parents.

Sources said that at the time the child was born, both her mother and father were using street methadone and heroin. The neglect petition alleges neglect by virtue of the parents’ substance abuse as well as the mother’s mental illness. The parents were not married. At the last permanency hearing, the court approved the goal of reunification of the child with her parents. But the court extended the child’s placement in foster care after determining that the return of the child home would be contrary to her best interest because the mother failed to make sufficient progress in her mental health and substance abuse services and the father was incarcerated.

When the child was placed in non-kinship foster care, her parents were warned and notified that if the child remained in foster care for 15 of the most recent 22 months, the foster agency may be required to file a petition to terminate parental rights. Indeed, the foster care agency filed a petition to terminate the mother’s parental rights on the grounds of permanent neglect and placed the father on notice of the pending petition. A Queens Family Lawyer said that during a second permanency hearing, the court emphasized that even though the foster agency recommended a goal of adoption and had filed a petition to terminate the mother’s parental rights, the agency is required to engage in concurrent planning, pending conclusion of the permanency hearing. Then the father filed his motions.

The father argued that an agency who has been vested with authority cannot file a petition to terminate parental rights until the permanency hearing and all appeals have been decided. The court ruled that this argument is not persuasive because it is contrary to the intent of the state and federal permanency laws and would prejudice the child in obtaining permanency. The court pointed out that contrary to the father’s contentions, one of the purposes of a permanency hearing is to conduct an audit to insure that the agency is meeting its obligations under the law and to review the parent’s compliance with the approved service plan. The court explained that its continuing jurisdiction is, among other things, to ensure quicker permanency for the children who remain in foster care.

In this case, the child has been in foster care since birth. At the time the case was decided, the child was already three years old and has been with the same foster parents, who would like to adopt her. Although there were permanency hearings conducted, the counsel for the father failed to attend those hearings for various reasons. A Nassau County Family Lawyer based on these facts, the court concluded that the child would be prejudiced if the court granted the father’s motion.

On the issue of constitutionality, the court ruled that the father’s actions and relationship with his child do not rise to the level to warrant constitutional protection, pursuant to the Due Process Clause. The father, in this case, never had actual or legal custody of the child nor took steps to prepare to obtain custody of her, as he continued to use heroin after her birth, and did not buy any provisions or make any arrangements to provide her a home.

Being involved in a lawsuit arising from domestic violence or obtaining an order for protection is emotionally difficult for all. Stephen Bilkis & Associates and our NY Family Law Attorneys will make sure you and your rights are protected at all stages in the case. Our offices are conveniently located throughout the NY Metropolitan area.

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