PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. By petition dated September 13, 2016, petitioner Catholic Guardian Services seeks the transfer of custody and guardianship of respondent Deanette Rosa M.’s child Angalee M. S., for the purpose of placing the child for adoption.1 The Court conducted a fact-finding hearing on this TPR petition on November 16 and December 1, 2017, and January 10, 11, and 22, March 13, April 16 and 20, and May 2 and 31, 2018. The record at the hearing consisted of the testimony of Ms. M. and Dr. Anansa Brayton, who was qualified as an expert in psychology and forensic psychology. Ms. M. was initially called as part of petitioner’s case-in-chief, but after several appearances was unable to continue testifying. She later testified as part of her own case and was subject to cross-examination by petitioner’s counsel. The record also included petitioner’s exhibits 1 (excerpts from agency case records, including entries requested by respondent), 2 (the fact-finding order from the underlying neglect case), and 3 (the dispositional order from the neglect case); and respondent’s exhibits A (Dr. Brayton’s CV), B (an evaluation Dr. Brayton conducted of Ms. M.), C (an excerpt from an additional case note from the agency’s records), and D (some of Ms. M.’s records from Interboro Developmental & Consultation Center).The sole cause of action for TPR litigated by the agency is permanent neglect. See SSL §384-b(7). A threshold issue in any permanent neglect case is whether the agency made diligent efforts to encourage and strengthen the parental relationship with the child. See SSL §384-b(7)(a) and (f). For the reasons that follow, the Court finds that the agency has not met its burden to establish grounds for termination of parental rights by clear and convincing evidence, Santosky v. Kramer, 455 U.S. 745 (1982), as it has not demonstrated the required diligent efforts. Matter of Sheila G., 61 NY2d 368 (1984).Angalee was born on January 29, 2014, suffering from a cardiac issue and paralyzed vocal chords. Surgery was required and she remained in the hospital for several weeks. During a visit at the hospital, Ms. M. physically assaulted Angalee’s father. ACS involvement quickly followed.The neglect petition against Ms. M. was filed on February 21, 2014. Based on the allegations, Angalee was removed from her mother’s care and remanded to ACS, where she was placed with a relative of Mr. S.’s in a kinship foster home and where she has remained ever since. At the time Angalee was born, Ms. M. also had a two-and-a-half-year-old daughter, Nyla I.; ACS removed Nyla from her care as well, and the court subsequently released Nyla to her father, Darius I., with ongoing ACS supervision.After a fact-finding hearing, the court (Ambrosio, J.) found, by order dated May 15, 2015, that Ms. M. had neglected both Angalee and Nyla by failing to treat her mental illness, which resulted in an act of domestic violence against Mr. S. and an assault against a police officer while visiting Angalee in the hospital. In the dispositional order dated December 7, 2015, the court (Gruebel, J.) placed Angalee in foster care and directed Ms. M. to “continue with her mental health services (counseling) and the anger management component of such counseling until deemed not therapeutically needed.” She was also directed to submit to a psychiatric evaluation and to comply with all recommendations from the evaluation, including medication management. Anticipating that Ms. M. might seek a second opinion regarding medication, the court’s order provided that any evaluator be given the petition, fact-finding and dispositional order, and the report that had been completed by the court’s Mental Health Services clinic, and directed that in the event of a dispute about the need for medication, the matter should be brought to the court for resolution.The record does not contain clear evidence about what the agency’s service plan for Ms. M. was when Angalee first entered foster care. As no witness from the agency testified, the Court is forced to rely on the notes entered as Petitioner’s Exhibit 1 and any admissions made by Ms. M. in her own testimony. To the extent Ms. M.’s testimony differed from the agency’s case notes, the Court finds the testimony not credible and will instead credit the contemporaneous notes made by petitioner’s staff. Nevertheless, even credible admissions-against-interest by Ms. M. in her testimony are not sufficient to fill in gaps in petitioner’s evidence on this record.Though the child entered care in February 2014, the first indication in the case notes regarding her service plan was not until a family team conference (“FTC”) held on April 3, 2014, at which time the “case planner stated that the mandated services that are required for the birth mother are not clear cut.” (Ex. 1 at Bates no. 030.) Ms. M. told the group that the only service she needed was mental health treatment, and that she was already in individual counseling at Interboro (hereinafter, “IDCC”) and would be having a psychiatric evaluation the following week. The following day, the case planner gave Ms. M. referral information for a parenting skills class, but was told that the program would contact her to register. (Ex. 1 at Bates no. 033.)On April 14, 2014, the case planner sent Ms. M. a “service plan letter.” This would not be the only time over the subsequent years that such an entry was noted in the case record. Other examples include case note entries on July 21, 2014 (Ex. 1 at Bates no. 097); August 20, 2014 (id. at Bates no. 115); January 30, 2015 (id. at Bates no. 185); July 21, 2015 (id. at Bates no. 246); and January 27, 2016 (id. at Bates no. 280). However, petitioner did not enter the actual letters in evidence, nor was the text of any “service plan letters” cut and pasted into the case progress notes that were offered into evidence.Thus, it is not clear what the agency’s defined service plan for Ms. M. was, either at the inception of the case or anytime thereafter; all that can be gleaned is by inference from the case note entries over time. For example, at another FTC on April 25, 2014, it was reported that Ms. M. was enrolled in individual therapy, parenting skills education, and anger management, and that she had an upcoming psychiatric evaluation; no other requirements were mentioned. (Ex. 1 at Bates no. 050, 052.) The summary of an FTC on February 23, 2015, does not indicate what her service plan was; it merely makes mention of her claim to be enrolled in counseling at IDCC and the need for her to sign a release form so that her claim could be verified. (Ex. 1 at Bates no. 192, 194.) By April 2015, the agency evidently added therapeutic visiting to the service plan, as it made a referral for that service to the New York Society for the Prevention of Cruelty to Children; however, there were no spots available. (Id. at Bates no. 217-18; see also id. at Bates no. 259 (documenting six-month wait list for court-ordered “visit coaching” service).) At an FTC in April 2015, the case planner mentioned that she had sent Ms. M. for a random drug screen because “she was told [Ms. M.'s] behavior appear[ed] to be of possible drug use.” (Id. at Bates no. 221.) There is no further information in the case record about drug use or the addition of random drug screens or drug treatment to the service plan. On September 10, 2015, the agency documented that the deputy director had approved a “compelling reason” to maintain the permanency planning goal as “return to parent,” despite the length of time the child had been in care: Ms. M. was “making substantial progress in correcting the conditions that led to placement.” (Ex. 1 at Bates no. 256.) Later that month, the agency communicated to Ms. M. its intent to convene a “goal change conference.” Ms. M. noted that she had completed everything asked of her. The agency did not document that there was any service other than those already mentioned that was still required of her. (Id. at Bates no. 257-58.)When the goal change conference happened on October 9, 2015, the agency did note that there were additional programs that could be of assistance to Ms. M.: help in finding suitable housing, and exploration of SSI benefits. (Id. at Bates no. 259.) There is no mention in subsequent case note entries documenting any actual assistance the agency gave her in these areas; at a subsequent goal change conference on May 26, 2016, the agency promised to “follow up” regarding a NYCHA application for Ms. M., without documentation then or subsequently as to what follow up activities, if any, there may have been. (Id. at Bates no. 307.)Some clarity as to the service plan was finally obtained at an FTC on March 30, 2016. There, the agency documented that the “service plan includes mental health evaluation, therapy, and parenting training.” A reference was made to a mental health evaluation conducted on December 28, 2014, which recommended that Ms. M. take medication, and the agency noted that Ms. M. was refusing to take medication. (Id. at Bates no. 293.) The agency did not offer the evaluation into evidence at trial, and there is no information in the case notes regarding the identity or qualifications of the evaluator, what information was considered as part of the evaluation, or what modality of mental health services was deemed most appropriate for her diagnosis. At the FTC, the agency added a requirement for Ms. M. to complete an anger management program and indicated that a referral would be made, even though Ms. M. said she would not do such a program because she was working on anger in her individual counseling. (Id. at Bates no. 306-07.) Working on anger issues within her individual therapy was specifically indicated in the court’s dispositional order. (Pet. Ex. 3 at 3.) The agency once again promised to “explore visiting coach services.” (Pet. Ex. 1 at Bates no. 307.) No additional services were contemplated.The agency’s case record shows no clear evidence that the agency ever engaged in a meaningful assessment of Ms. M.’s needs or the factors that led to her behavior in January 2014 resulting in her child’s placement into foster care, as required by law. See SSL §409-e. As noted above, there is no evidence in the record that the agency followed up with the provider who conducted her December 2014 psychiatric evaluation. To the extent that the agency was interested in the details of Ms. M.’s mental health treatment, the evidence of this interest was limited to notes documenting its efforts to determine whether or not she was taking medication — certainly a necessary inquiry, but not nearly sufficient to truly understand if her service plan was working for her. (See, e.g., Ex. 1 at Bates no. 247, 253.)While the agency convened FTC’s and made many attempts to discuss the case with Ms. M. (some of which were successful, some of which were not), its records consist primarily of factual information such as documentation of the case planner’s conversations with Ms. M., the foster parent, and other people involved in the case. To the extent the records touch on the “effectiveness” of the service plan, SSL §409-e(2)( c)(iv), they consist mostly of complaints about Ms. M.’s aggressive and rude behavior. There is no discussion in the record about revisiting the 2014 psychiatric evaluation in light of new developments or the stalled nature of the case. Ms. M. testified (12/1/17 Tr. at 47) to having submitted to several evaluations during the relevant time period, but there is no indication in the record that the agency provided input to the evaluator(s) at the time the evaluations were done; sought to obtain the evaluations; or ever discussed their results and implications for case planning with the evaluator(s) or Ms. M.. (4/16/18 Tr.)Instead, the case planner made sure to document when Ms. M. was “irate” (see, e.g., Ex. 1 at Bates no. 162-63; 237-38), and complained that she needed a “safety plan” because “every time Ms. M. call[s] my extension she is rude, disrespectful, and obnoxious” (id. at Bates no. 133). It appears petitioner never attempted to understand what might be prompting such outbursts, whether on its own or in consultation with others who might have been qualified to do so. The story told in these records, and argued by petitioner in this litigation, is that Ms. M. has a fatal character flaw: she is a bad person and a bad mother, and there is nothing more the agency could have done to remedy her problems.What the agency missed is that Ms. M. — adopted from a troubled home when she herself was a young child — had a history of trauma that quite likely explained or at least contributed to her aggression, her outbursts, her erratic behavior, and her self-defeating actions. Of course, that trauma might explain Ms. M. certainly does not excuse the outrageous and hurtful things she did and said. But before a court can determine if her actions constitute a “failure to plan” under the statute, the agency bears the burden of establishing that it undertook affirmative, repeated, and meaningful efforts first to understand Ms. M.’s issues and then to address them.While petitioner discounts Ms. M.’s trauma history as a non-credible fiction due to minor inconsistencies in her trial testimony, during the relevant time period the agency had more than enough credible information that Ms. M.’s behavior might be the expression of a trauma- and stressor-related disorder. The agency was aware that she had been adopted at an early age and had been in and out of psychiatric hospitals from the time she was 10 until the age of 18. She was also a victim of domestic violence at the hands of Nyla’s father, Mr. I..Moreover, Ms. M. was a survivor of childhood sexual abuse. In fact, in June 2014, the ACS supervisor handling Nyla’s case directed the child protective specialist to inquire of Ms. M. if she had ever had services related to being a survivor of childhood sexual abuse and to make a referral if not. “[I]t appears her childhood sex abuse has gravely impacted her and may not have been properly addressed.” (Ex. 1 at Bates no. 089.) This note was included in petitioner’s case record concerning the child Angalee, so even if it was not directed at a Catholic Guardian worker specifically, it still at a minimum put the agency with planning responsibility for Angalee on notice as to what issues were impacting Ms. M.’s functioning. Indeed, in August 2014, the ACS CPS was directed to “[w]ork with [Ms. M.] on identifying the underlying factors that contributed to her ways of handling situations unproductively. She has a history of abuse as a child related to her mother['s mental health] condition as well she developed unhealthy coping mechanisms such as self-mutilation during her childhood to release the pressure of her childhood life.” (Id. at Bates no. 110.) The foster care agency with responsibility for Angalee should have taken this information — provided by ACS and included in Angalee’s case record — at face value and engaged in a meaningful clinical assessment of what it meant, and then sought appropriate services to address the problems. Its failure to do so reveals a lack of diligent efforts.Social welfare agencies have, in recent years, paid increased attention to the prevalence of trauma in their client populations and developed ways to screen for and treat trauma-related problems. For example, ACS now screens all children who enter family foster care for trauma using a nationally-recognized screening tool. The purpose of the screening is to assist foster care agencies in providing appropriate, effective, individualized services. See Administration for Children’s Services, Foster Care Strategic Blueprint FY 2017 Status Report at 8, available at https://www1.nyc.gov/assets/acs/pdf/about/2017/BluePrint.pdf. However, despite this best practice being applied to children, there does not appear to be a universal, mandated approach in this jurisdiction to working with birth parents around the trauma that they might have experienced. Experts in social work and mental health have estimated that between 30 and 60 percent of maltreated children have caretakers who have experienced domestic violence (let alone other forms of trauma). They urge front-line professionals to understand that parents might “exhibit posttraumatic reactions in court or when interacting with their children or case managers,” and that referrals for proper evaluation and treatment can be critical. See National Child Traumatic Stress Network, Birth Parents with Trauma Histories and the Child Welfare System: A Guide for Judges and Attorneys, available at https://www.nctsn.org/sites/default/files/resources//birth_parents_with_trauma_histories_child_welfare_judges_attorneys.pdf. That at the relevant time period ACS did not require petitioner to conduct a trauma assessment of parents like Ms. M. does not provide the agency a diligent efforts safe harbor. “[I]n most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices.” The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932). Policy norms aside, in this specific case, as noted above, ACS provided information accessible to the planning agency which should have led to a clinical decision to make further assessment and inquiry of her trauma history. If the agency had undertaken an appropriate clinical assessment of Ms. M., it would very likely have found that she suffered from a disorder related to her past trauma that could have been treated with services other than what the agency already had her doing.Dr. Brayton testified credibly and persuasively about her diagnostic impressions of Ms. M. based on the evaluation she conducted in the summer of 2015, a year before this petition was filed. In her expert opinion, Ms. M. displayed symptoms and traits consistent with a trauma and stressor related disorder as well as a depressive disorder and borderline personality disorder. Many of these traits are consistent with a history of childhood victimization. In collateral contact with Ms. M.’s therapist, Dr. Brayton learned that the therapist was not sure why Ms. M. had sought out treatment, and Dr. Brayton “had concerns that perhaps therapy was not fully working towards increasing [her] insight if her therapist was unaware of some of the specific issues and challenges and recommendations.” (1/11/18 Tr. at 22; Ex. B at 24.) Dr. Brayton also detected possible borderline intellectual functioning, as cognitive testing revealed Ms. M. to have an IQ of 70. (See Ex. B at 15-16 and 20.) The Court credits Dr. Brayton’s evaluation and testimony as being more accurate and reliable than any psychiatric evaluations that were done at IDCC.In sum, based on Dr. Brayton’s report and testimony, it appears that as of the summer of 2015, Ms. M. was not getting the treatment she needed by a clinician who was familiar with her needs. Dr. Brayton recommended that her individual therapy include “dialectical behavior therapy interventions and a focus on interpersonal functioning,” as DBT has been found to be effective in clients suffering from borderline personality disorder. (Ex. B at 24; 3/13/18 Tr. at 21-22.) Moreover, Dr. Brayton recommended that Ms. M.’s treatment providers be made aware of her cognitive challenges — in fact, Dr. Brayton recommended that the agency refer Ms. M. to a community-based agency specializing in working with individuals with cognitive limitations, where she could receive a further, more through cognitive assessment and job training and job placement assistance.2 Not only did petitioner not follow up with Dr. Brayton’s recommendations, but there is no indication anywhere in the case records in evidence that the agency took steps to obtain the evaluation or read it — even though the agency knew that it was being conducted. (Ex. 1 at Bates no. 251-55.) In this litigation, petitioner argues that it cannot be responsible for the contents of an evaluation which it was never provided, and that it is respondent’s burden to establish that the agency received it. However, petitioner has had physical care of the child since she was remanded in February 2014, and ACS, which has had legal custody of her, has contracted with petitioner to provide for her care and delegated case planning responsibility to petitioner. Therefore, in the Court’s view the only fair inference is that a Courtordered mental health evaluation conducted by the Court’s mental health services clinic was provided to petitioner by ACS counsel at or near the time the report was completed and distributed to the parties in the underlying Article 10 action.In the alternative, petitioner argues that because the court did not order the agency to make the referrals recommended by Dr. Brayton as part of the dispositional order (Ex. 3) (the evaluation had been completed in advance of the dispositional hearing), the court at the TPR stage should not hold the agency responsible for having failed to implement its recommendations. Here, the agency mistakes Family Court’s Article 10 dispositional orders to be ceilings instead of floors. When Family Court makes a dispositional order in a child protective case, its provisions set forth the minimum work that the agency is required to do to effectuate the permanency goal that is set at the time of that order. The agency is still responsible for conducting its own independent assessment of the respondent and the child to determine what additional services, if any, are necessary. Indeed, it is not uncommon in permanent neglect proceedings for parents to be held responsible for “failure to plan” and to have their parental rights terminated for having failed to engage in services dictated by the agency and never ordered by Family Court. If such an outcome is permissible under the law, then an agency can be found to have failed to engage in diligent efforts notwithstanding that it made referrals for all services ordered by the court. Here, for all the reasons stated above, the agency did not make an appropriate assessment of Ms. M. and did not provide her an individualized service plan targeted to helping her redress the neglect that led to Angalee’s placement in foster care.From all indications in this record, the individual therapy that Ms. M. was receiving at IDCC from Ms. Schwartz was not the kind of intervention recommended by Dr. Brayton. Not only could Dr. Brayton not discern what Ms. Schwartz was doing with Ms. M., or what information she had about Ms. M.’s background or the needs of the case, but the agency does not appear to have collaborated with Ms. Schwartz in an effective way. The record indicates some attempts by the case planner to speak with Ms. Schwartz (see, e.g., Ex. 1 at Bates no, 274, 278), but there is no documentation about what was discussed, if anything. The agency did not subpoena Ms. M.’s records from IDCC and there are no notes from Ms. Schwartz at all in evidence.3 All that the records contain in substance about the therapeutic relationship between Ms. Schwartz and Ms. M. is a note from the ACS worker to the effect that Ms. Schwartz seems too sympathetic to Ms. M. (Ex. 1 at Bates no. 233.) Despite this observation and all the other information the agency had or should have had about Ms. M., there is no indication that the agency had a meaningful conversation with Ms. M. about her progress in therapy or that it recommended her to a clinician who could approach the relevant issues with Ms. M. with the appropriate treatment modality.With respect to Ms. M.’s visitation with Angalee, the record indicates that the agency placed significant obstacles in her way, preventing her from having the opportunity to have appropriate parenting time with her child. Cf. Matter of Leon RR., 48 NY2d 117, 125 (1979). The child was placed in a kinship foster home with a relative of her father’s. It was well-known to all parties that Ms. M. and Mr. S. did not get along, to put it mildly. (See, e.g., Ex. 1 at Bates no. 030.) Nevertheless, Ms. M. agreed to the agency’s request that she visit the child in the foster home in the first few months of the case, given the child’s medical fragility, young age, and the winter weather. However, she soon requested that the visits take place elsewhere. At an FTC on April 3, 2014, she asked that the visits be supervised by relatives on her side of the family, but the agency did not know who had been cleared for this purpose and there is no indication in the case record that the case planner inquired of ACS after the meeting to find out. (Id.) At the next FTC later that month, Ms. M. was more explicit: she wanted the visits to take place somewhere other than the foster home, even if they had to be at the agency. (Id. at Bates no. 050, 052.) Yet inexplicably, the visits continued to take place in the foster home. The case planner herself observed one of these visits, on May 12, 2014, and saw for herself one of the issues Ms. M. had been complaining about: the foster father gave unsolicited and unwelcome advice to Ms. M. about how to live her life. (Id. at Bates no. 063.) Thus, the Court finds credible Ms. M.’s complaint, in her testimony, that the foster parents interfered with her bonding with Angalee during her parenting time at their home. (3/13/18 Tr. at 62; see also 1/11/18 Tr. at 32-35.)The visits continued in the foster home for months, even after the foster mother herself asked that they no longer take place there. (Id. at Bates no. 098.) Finally in August 2014, arrangements were made for a resource proposed by Ms. M. to supervise visits on Saturdays for her with both Angalee and Nyla, yet mid-week visits continued to take place in the foster home. When Ms. M.’s own behavior undermined the visits in her friend’s home, the agency proposed moving all visits to the agency. The ACS supervisor directed the ACS worker to seek out all resources previously provided by Ms. M. to see who, if anyone, was available and suitable to supervise visits; the worker was also directed to explore a community visiting coach. (Id. at Bates no. 132.) However, petitioner’s case planner seemed unaware of this; she told Ms. M. that the visits would be taking place back in the foster home again. (Id. at Bates no. 133.) Ms. M. was irate. While she obviously could have handled the situation better, the agency’s inexplicable insistence that the visits take place only at the foster home — even after ACS directed otherwise — was an unreasonable obstacle to appropriate parenting time.Eventually, petitioner did move the visits to the agency, and Ms. M. had many positive visits with both of her girls together there. In time though, she found the visits to be too stressful at the agency, and she herself asked for them to return to the kinship foster home. The reason for her stress was that the agency seems to have not used a domestic violence protocol to keep her separated from Nyla’s father, who had custody of Nyla and would bring her to the visits. Ms. M. had wanted Nyla to get to know Angalee and for the three of them to spend time together, but the agency should have taken steps to make this happen without bringing Ms. M. and Mr. I. face to face at the agency, something that triggered her. (3/13/18 Tr. at 24; Ex. B at 24.) Stuck between a rock and a hard place, Ms. M. was given no other reasonable option than to request that the visits go back to the foster home. There is no indication in the case record that the agency or ACS ever followed up to complete the investigation of other resources Ms. M. had proposed to supervise her visitation, and the agency was never able to get her a visiting coach or a spot in a therapeutic visitation program. The agency even signed off on Mr. I. bringing Nyla to visits at Angalee’s foster home, because there were “no reported incidents” between Ms. M. and Mr. I., despite knowing of the history of conflict between them and knowing that his presence at the agency is what made the agency-based visits intolerable for Ms. M. (Id. at Bates no. 279.) It appeared the agency was setting Ms. M. up for failure.Unquestionably, Ms. M. was not an easy client for the agency to work with. She was obstinate, hostile, rude, and, at times, scary. She said horrible things to the workers and occasionally abjectly unacceptable things to her children. Dr. Brayton noted that her prognosis for Ms. M., even with the sort of treatment and interventions that she was recommending, was “guarded” (Ex. B at 23), questioning whether she would ever be able to change sufficiently to regain custody of Angalee. There is certainly no guarantee that, had she been referred to the appropriate services, Ms. M. would necessarily have attended or benefited sufficiently from them, but a “guarantee” that the efforts will work is not the standard when assessing whether they were diligent. Matter of Shantelle W., 185 AD2d 935, 939-40 (2d Dep’t. 1992). The agency’s failure to make the referrals is fatal to its claims that it determined the particular problems facing Ms. M. with respect to the return of Angalee and that it made affirmative, repeated, and meaningful efforts to assist her in overcoming these problems. Sheila G., 61 NY2d at 385. Futility is not an exception to the diligent efforts requirement. Matter of Star A., 55 NY2d 560, 565 (1982).The Court has considered petitioner’s remaining arguments regarding diligent efforts and finds them unpersuasive. Because the agency’s case fails at this threshold issue, the Court need to analyze the failure to plan allegation.For the foregoing reasons, the petition is hereby DISMISSED WITH PREJUDICE.Dated: June 27, 2018
