REASONABLE EFFORTS TO RETURN TO FAMILY IN NEGLECT AND ABUSE PROCEEDING NOT REQUIRED

MATTER OF SCOTT, 2022 NY Slip Op 50645 - Thomson Co. Family Court 2022:

"Respondent Jamie Scott (hereinafter "the mother" or "the Respondent") is the mother of the subject child Britney Scott (date of birth: XX/XX/13).^[1] 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 Britney by the mother. The Court ordered the temporary removal of Britney 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 Britney 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 Britney be returned to the Respondent. The Court determined that it was in Britney'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.

On January 6, 2022, the Department filed a motion pursuant to FCA § 1039-b(b)(6) requesting a finding that reasonable efforts to return Britney to the Respondent mother's home are no longer required. On March 11, 2022, Respondent filed an Affirmation in Opposition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to FCA § 1039-b(b)(6), "reasonable efforts to make it possible for the child to return safely to his or her home shall not be required where the court determines that the parental rights of the parent to a sibling of such child have been involuntarily terminated unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future" [emphasis added]. The obligation of the Department to make and prove diligent efforts may be excused retroactively. Matter of Marino S., 100 NY2d 361, 373 (NY 2003).

The Court is not required to hold an evidentiary hearing on such a motion but must do so only "when genuine issues of fact are created by the answering papers" Matter of Damion D., 42 AD3d 715, 716 (3rd Dept. 2007). A parent's engagement in rehabilitative services is not sufficient to require an evidentiary hearing. Matter of Carlos R., 63 AD3d 1243, 1245 (3rd Dept. 2009). Regardless of whether a respondent may have recently engaged in some rehabilitative services, there is a "sound basis" for the Court to dispense with the agency's requirement to make reasonable efforts where there is a "consistent past history of substance abuse and failed attempts at rehabilitation ..." Id.

In this case, the Respondent mother's answering papers do not raise a genuine issue of fact requiring an evidentiary hearing. It is uncontroverted that the Respondent's parental rights to four of her children — John Scott, Paul Scott, Georgia Scott, and Riann Scott, — were involuntarily terminated by decision signed April 1, 2011, and order entered April 15, 2011 (Petitioner's Exhibits L & M). As such, this Court must dispense with the Department's requirement to engage in reasonable efforts to return Britney to the Respondent's care unless the court determines that continued reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. The Court does not find that any of these conditions are met, let alone all three, and therefore the Department shall no longer be required to engage in reasonable efforts.

This Court determined after the Fact-Finding Hearing that the Respondent used Britney as sexual bait for a pedophile, placing her in imminent danger of mental, emotional, and physical harm. But for the intervention of law enforcement, Britney faced a very real danger of being further sexually exploited, through child pornography and/or sexual assault. The Respondent's own testimony at trial was devoid of credibility and "absurdly contradictory." (Decision and Order entered June 7, 2021). Further, the Respondent's admissions at trial established that Britney was not the first child of hers that she subjected to such danger. The Respondent testified that, prior to losing custody of her daughter Miley Scott, Miley disclosed that she had been sexually abused by a man named Harvey Kelly in South Carolina. The Respondent had allowed Mr. Kelly access to Miley, and following the child's disclosure, Child Protective Services in South Carolina "told [Respondent] not to let [Miley] be left alone with him again."

At the Dispositional Hearing in this matter on October 13, 2021, the Respondent testified that she would follow all mandates of the Court as set forth in the subsequent dispositional order. However, since that time, the Respondent has repeatedly stated to the Department's caseworker Angela Pitt that she will not abide by the Court's orders, that she will not work with the Department, that she did not do anything wrong, and that instead of working towards her milestone accomplishments, she plans to wait until the appropriate time and then appeal. (Petitioner's Exhibit X). Despite being ordered to submit to random screening for substance abuse, the Respondent has refused, thwarted, and evaded the Department's numerous attempts to ensure the Respondent's compliance with this condition, even claiming that she "dropped her phone in the toilet." (Petitioner's Exhibit X). The Department was left with no way of directly reaching the Respondent, in violation of the Respondent's obligation to maintain communication with the Department. (Petitioner's Exhibit X). The Respondent has also denied the Department access to her home on at least one occasion, has refused to participate in phone calls with Britney if they are supervised by the foster parents, has demanded that Britney be removed from her foster home, and has engaged in inappropriate conduct towards both the foster parents and the Department, including telling caseworker Pitt, "[B]itch, shut the hell up." (Petitioner's Exhibit X). The Court finds that the Respondent continues to demonstrate a complete lack of insight into her neglectful conduct, placing Britney at a very real and imminent risk of harm should she be returned to the Respondent.

Even accepting the Respondent's claims in her answering papers as true that she has obtained stable and secure Section 8 housing in Elmira, that she has provided information about her employment efforts to the Department, that she is in the process of seeking further engagement in mental health services in Elmira, and that she has maintained contact with Britney despite obstacles, none of those gains, either individually or collectively, are sufficient to overcome her long history of failed attempts at rehabilitation such that returning Britney to her care would be likely in the foreseeable future, would be in the child's best interests, and would not be contrary to the child's health and safety. The Respondent has a remarkable 30-year history of removals, neglect findings, loss of custody, and parental rights terminations involving all eight of her biological children as a result of her failure to adequately address mental health issues and consequent related issues including substance abuse, inappropriate housing, dishonesty, and an inability and/or refusal to keep unsafe men away from her children. (Petitioner's Exhibits A through M). These issues have severely impacted her ability to safely parent every child ever in her custody. Aside from the four children to whom her parental rights were involuntarily terminated, the Respondent lost custody of three other children through an Article 6 order as part of an Article 10 dispositional settlement. (Petitioner's Exhibit B). All eight of her children have been removed from her care at least once, three of them have been removed twice, and three of them (including Britney) have been removed three times. (Petitioner's Exhibits A through M).

The bases for most of these removals were the Respondent's repeated failures to obey court mandates, dishonesty regarding her refusal to follow court orders, and repeated failed attempts at rehabilitation. (Petitioner's Exhibits A through M). Indeed, there is a "consistent past history of substance abuse and failed attempts at rehabilitation" providing a "sound basis" for the Court to dispense with the requirement of making and proving reasonable efforts. Matter of Carlos R., 63 AD3d 1243, 1245 (3rd Dept. 2009). Further, the Respondent's recent deliberate evasion of the mandated random drug screenings calls into question the truthfulness of her repeated assertions to this Court that she has maintained a long period of sobriety and signals that the Respondent's substance abuse is not limited to a past history but is very much a present concern.

For all of the reasons set forth above, returning Britney to the Respondent mother's care is not likely in the foreseeable future, would not be in Britney's best interests, and would in fact be contrary to the child's health and safety. As such it is hereby

ORDERED that the Department shall not be required to engage in or prove reasonable efforts to return the child to the Respondent's home; and it is further

ORDERED that this dispensation operates retroactively pursuant to the legal authority cited above; and it is further

ORDERED that a Permanency Planning Hearing is scheduled for XXXX.

[1] The names of the subject child, Respondent, and other third parties have been fictionalized to preserve anonymity."