In re of a Proceeding Under Article 10 of the Family Court Act Y. SS.

2023 NY Slip Op 50968(U)

In the Matter of a Proceeding Under Article 10 of the Family Court Act Y. SS., A Child Under Eighteen Years of Age Alleged to be Neglected by E. SS., Respondent.

No. 2023-50968, Docket No. XXXX

Family Court, Tompkins County

July 25, 2023

Unpublished Opinion

Arthur Stever, Esq. (Attorney for Petitioner DSS)

Francisco Berry, Esq. (Attorney for Respondent-Mother)

Angelica Parado-Abaya, Esq. (Attorney for the Child) Respondent

Scott A. Miller, J.

Respondent E. SS. (hereinafter "the mother" or "the Respondent") is the mother of the subject child Y. SS (date of birth: XX/XX/13). The paternity of the child has never been legally established. On September 4, 2020, the Tompkins County Department of Social Services (hereinafter "the Department" or "the Petitioner") filed a Petition by Order to Show Cause pursuant to Family Court Act Article 10 alleging abuse and neglect of the child by the mother. The Court ordered the temporary removal of the child from the Respondent and placed the child in the care and custody of the Department pending resolution of the proceedings.

A Fact-Finding Hearing was conducted by the Court on February 4, 2021, March 19, 2021, April 2, 2021, and April 27, 2021. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Kristine Shaw. Attorney Angelica Parado-Abaya of Citizens Concerned for Children Inc., appeared as the Attorney for the Child. On June 7 2021, this Court issued a Decision and Order in which it determined that the child is a "neglected child" within the meaning of FCA § 1012(f)(i)(B) and that the Respondent mother engaged in conduct and demonstrated a lack of judgment which created an imminent danger of impairment to her daughter. The Court's Decision and Order entered June 7, 2021, is incorporated by reference as if fully set forth herein.

On October 13, 2021, a Dispositional Hearing was held. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On November 10, 2021, the Court issued a Fact-Finding Decision and Dispositional Order in which it determined that the Petitioner had established by a preponderance of the evidence that presently the Respondent lacks the fitness to regain custody of her daughter and that her complete lack of insight into her neglectful conduct would place the child at a very real and imminent risk of harm should the child be returned to the Respondent. The Court determined that it was in the child's best interests to remain in the care and custody of the Department, placed with her current foster family. The Court placed the Respondent under the supervision of the Department pursuant to FCA § 1057 and imposed a number of orders and conditions on her. The Court's Fact-Finding Decision and Dispositional Order entered November 10, 2021, is incorporated by reference as if fully set forth herein. The Third Department upheld this Court's finding of neglect and dispositional order. (Matter of Y. SS., 211 A.D.3d 1390 (3rd Dept. 2022).

On January 6, 2022, the Department filed a motion pursuant to FCA § 1039-b(b)(6) requesting a finding that reasonable efforts to return the child to the Respondent mother's home are no longer required. On March 11, 2022, Respondent filed an Affirmation in Opposition. This Court, by Decision and Order entered May 20, 2022, ruled that the Department shall not be required to engage in or prove reasonable efforts to return the child to the Respondent's home. The Court's Decision and Order entered May 20, 2022, is incorporated by reference as if fully set forth herein.

On June 15, 2022, the Department filed a Petition for Permanent Neglect alleging that the Respondent had permanently neglected her daughter. A Fact-Finding Hearing was held on March 17, 2023, March 29, 2023, and April 3, 2023. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. This Court, by Decision and Order entered June 6, 2023, ruled that the Respondent failed substantially and continuously or repeatedly to plan for the future of the child although physically and financial able to do so, and as a result, permanently neglected her child. The Court's Decision and Order entered June 6, 2023, is incorporated by reference as if fully set forth herein.

On July 7, 2023, and July 12, 2023, a Dispositional Hearing was held. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. The court heard testimony from the foster mother, a Tompkins County DSS Family Worker, a Chemung County DSS Case Worker, a Tompkins County DSS Case Worker, a friend of the Respondent, and the Respondent. Petitioner's Exhibits 1 through 9 and Respondent's Exhibits 1, 2, 3, 4, and 7 were received into evidence. The Court heard oral summations by counsel on July 12, 2023.

FINDINGS OF FACT

In its Decision and Order entered June 6, 2023, this Court made detailed findings of fact and conclusions of law that from the date of the child's placement on September 4, 2020 through the filing of the permanent neglect petition on June 15, 2022, the Respondent, although physically and financially able to do so, failed to substantially and continuously or repeatedly plan for the future of the child, that she failed to make any meaningful progress towards any of the mandates contained in this Court's Fact-Finding Decision and Dispositional Order entered November 10, 2021 (or any other alternative plan), and that, consequently, the Respondent had permanently neglected her child. The credible testimony and other evidence received at the Dispositional Hearing established that from June 15, 2022, until present, the Respondent has continued to fail to make any meaningful progress towards the mandates of this Court.

The Respondent continues to reside in the same mice-infested home she testified about several months ago during the permanent neglect fact-finding, although this time she claimed the mice have been gone since the old tenants moved out "last year." The Respondent was not credible. The residence remains unsafe, unclean, hazardous, and unfit for a child.

The Respondent, by her own admission, has never provided the Department or the Court with any documentation of legal sources of income aside from several exhibits that were received into evidence at the hearing. The exhibits and credible testimony merely established that: (1) the Respondent contacted Castle Services of Ithaca and received a brief reply; (2) the Respondent earned a total of $219.24 from January 1, 2023, through July 12, 2023, from People Ready Inc.; and (3) the Respondent is currently enrolled in the Hospitality Employment Training Program at the Greater Ithaca Activities Center. These efforts at legal employment are minimal and sporadic at best and certainly do not constitute meaningful progress towards the mandate of the Court.

The Respondent is currently engaged in substance abuse treatment at CASA Trinity. While this involvement is certainly positive, the Court must view this temporary progress through the proper lens of the Respondent's long-term history of substance abuse including numerous relapses after failed attempts at sobriety. It is also imperative to note that over the course of the child's placement, the Respondent regularly evaded unannounced drug screenings, attempted to manipulate at least two screens, tested positive for cocaine on at least two occasions, and tested positive for alcohol on at least one occasion. In this context, the Respondent's current strides do not constitute consistent, meaningful, long-term progress towards the Court mandate.

After attending two counseling sessions at Field of Dreams, the Respondent determined that she wasn't "enjoying" the services there, and she switched to Clinical Social Work and Counseling Services of the Finger Lakes where she has thus far completed a total of three sessions. Given that the Respondent was ordered to obtain a mental health assessment and follow through with all recommended treatment on November 10, 2021, this limited participation in mental health counseling does not constitute meaningful progress towards addressing the issues that led to the child's removal.

The Respondent has had numerous contacts with law enforcement during the child's placement including an arrest for driving while intoxicated and numerous tickets for operating a motor vehicle with an open container of an alcoholic beverage. The Respondent continues to drive even though her driver's license is suspended for failure to pay numerous traffic tickets. The Respondent has failed to abide by the order of this Court to "refrain from any illegal activity which poses a risk of safety of the child."

The Respondent has missed or been late to a staggering number of in-person visits and telephone calls with the child. During the...