Admin. for Children's Servs. v. Claudia A. (In re Michael A.)

163 A.D.3d 654

81 N.Y.S.3d 146

In the MATTER OF MICHAEL A. (Anonymous).

Administration for Children's Services, respondent;

v.Claudia A. (Anonymous), appellant.

2016–13341

Docket No. N–11606–14

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 30, 2018

July 11, 2018

Brooklyn Defender Services, Brooklyn, N.Y. (Julia Hernandez and Amy Mulzer of counsel; Elizabeth French and John O'Donnell on the brief), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing, Amanda Sue Nichols, and Carolyn Walther of counsel), for respondent.

The Legal Aid Society, New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Kings County (Margaret Morgan, J.), dated November 16, 2016. The order, after a permanency hearing, denied the mother's motion for a determination that, since the completion of the last permanency hearing, the petitioner had failed to make reasonable efforts to achieve the permanency goal of reunification of the mother and the subject child, a determination that Title II of the Americans with Disabilities Act applied to this proceeding, and for an order, inter alia, directing the petitioner to provide the mother and the mother's attorney with advance written notice in Spanish of any service planning conferences, and to submit supportive housing applications on the mother's behalf.

ORDERED that the order is modified, on the law and the facts, by deleting the provisions thereof denying those branches of the mother's motion which were for an order directing the petitioner to provide the mother and the mother's attorney with advance written notice in Spanish of any service planning conferences, and to submit supportive housing applications on the mother's behalf, and substituting therefor provisions granting those branches of the mother's motion; as so modified, the order is affirmed, without costs or disbursements.

In May 2014, the petitioner commenced a proceeding pursuant to Family Court Act article 10 alleging that the mother neglected the subject child. The petition was based in part upon a mental health evaluation of the mother. A psychiatrist and a psychologist conducted the mental health evaluation through a Spanish–English interpreter because the mother spoke Spanish. The evaluators concluded that the mother fell within the "Extremely Low" range of intellectual functioning, and diagnosed her with "Unspecified Neurocognitive Disorder, Moderate." The child was removed from the mother's custody and placed into foster care. In August 2014, the mother underwent a second mental health evaluation conducted by employees of the New York State Institute on Disability, Inc. The mother scored "within the Mild range of Intellectual Disability," and her adaptive behavior skills fell within the "Low range with Severe Deficit."

After a fact-finding hearing on the neglect petition, the Family Court issued a fact-finding order dated October 20, 2015, finding that the mother neglected the child because she "failed to provide food, money or shelter for the care of the child by reason of her mental disability." In a separate order, also dated October 20, 2015, the court found that the petitioner made reasonable efforts to finalize the permanency plan of reunification of the child and the mother, and, in effect, that the child should remain in foster care placement until the completion of the next permanency hearing. The court also ordered the mother to undergo another mental health evaluation.

After failing to attend the first three scheduled appointments for the court-ordered mental health evaluation, the mother appeared for the evaluation in March 2016. A psychologist conducted the evaluation in Spanish. According to the evaluator's report, the mother's performance on cognitive testing was within the "Low Range of functioning[,] which corresponds with a borderline intellectual functioning." The evaluator stated that the mother's score "suggests a higher level of cognitive functioning than [ ] required for an intellectual disability," and noted that the mother may have scored lower on cognitive testing during her first mental health evaluation because that evaluation included a cognitive test in English administered with the assistance of a translator. The mother's provisional diagnosis was "Other Specified Schizophrenia Spectrum and Other Psychotic Disorder with delusions and significant overlapping mood episodes."

The permanency hearing which is the subject of this appeal commenced on May 4, 2016, with a permanency goal of reunification of the mother and the child. During the hearing, the petitioner presented the court with a report of a psychiatric evaluation of the mother that was performed on July 25, 2016. The report stated that the mother suffered from delusional beliefs, and gave her a provisional diagnosis of "Delusional Disorder," though it noted that it was "possible that limited intellectual ability could also cause this type of thinking."

The mother moved for a determination that, since the completion of the last permanency hearing, the petitioner had failed to make reasonable efforts to achieve the permanency goal of reunification of the mother and the child because the petitioner had failed to tailor the mother's service plan to accommodate her intellectual disability. The motion also sought a determination that Title II of the Americans with Disabilities Act (see 42 USC § 12101 et seq. ; hereinafter the ADA) applied to this proceeding, and that the petitioner violated the ADA by failing to tailor her service plan to accommodate her intellectual disability. Finally, the motion sought an order pursuant to the ADA and Family Court Act § 1089, inter alia, directing the petitioner to directly purchase any necessary services for the mother, to provide the mother and the mother's attorney with advance written notice in...