In re Sharu K.
OPINION OF THE COURT
This is a case of first impression where a nonrespondent incarcerated father and intervenor objects to a social services agency’s permanency goal of “Placement for Adoption” for his young son. In its statutorily-mandated permanency hearing report (report) dated August 8, 2007, petitioner Monroe County Department of Social Services (Department) reports that its new permanency goal for Sharu K. (date of birth Aug. 2002) is “Placement for Adoption.” Nonrespondent father and intervenor in the neglect proceeding Richard K. (father) objects to the goal and argues that it should remain instead “Return to Parent.” Respondent Melanie K. (mother) and the Law Guardian support a dual goal. The court modifies Sharu’s permanency goal as it relates to father to “Return to Parent.”
Facts
Father has been present in Sham’s life since his birth in August 2002. In 2003 both father and mother were granted joint custody of Sham and father had primary physical residency of Sham for a short time until residency was switched back to mother sometime in the Summer of 2003 after incidents of domestic violence.
On August 7, 2004 Sharu was removed from the home of mother. At the onset of the neglect proceeding respondent intervened and sought to have Sharu placed with him. Father also petitioned for full custody of Sharu. The court granted father weekly supervised visits with Sharu. By February 2005, father’s visitation became unsupervised; such visits went well until the summer of 2005 when another incident of domestic violence occurred and father was arrested for violating an order of protection issued to mother. Father continues to be incarcerated and Sharu remains in foster care. Three permanency
A. Caseworker Contact
Ms. Montesano has been employed with the Department for approximately one year. She has worked with both respondent and father since November 2006 while in training with the Department. Montesano and father both testified that their contact has been limited to letter communication. Five letters were received as respondent’s exhibits: the letters primarily address father’s visitation with Sharu although the Department’s final letter dated September 14, 2007 states “the American and Safe Families Act requires that we proceed with termination of parental rights when a child has been in foster care for 15 out of 22 months. Sharu has been in foster care since 3/06.” As of September 14, 2007, the Department’s TPR petition against father had already been filed for almost three months.
B. Release Date
Father has a conditional release date of April 2008. Father’s latest release date is August 2009. Father was denied parole in June 2007. Father testified that he is incarcerated currently at Orleans Correctional Facility, due to his conviction for violating his probation as he violated an order of protection issued in favor of mother. He received a 2 to 4 year sentence that is currently on appeal.
C. Visitation
Before father was incarcerated he received weekly unsupervised visitation. After incarceration, father was receiving weekly visitation at the Monroe County Jail where he was awaiting trial (report Jan. 5, 2006). When father was relocated out of county during the summer of 2006, the court provided visits for Sharu and father when father was produced to Monroe County for court appearances; the court nonetheless ordered that the Department provide monthly visits. Specifically, during appear
“some of the visits had to be cancelled due to severe weather conditions or if the foster parents already had plans for Sharu for the day that [the Department] was available [with transportation]. On one occasion [the transportation provider] and Sharu went to a visit and were not allowed into the prison.”
D. Services
The report dated January 5, 2006 states that “[father] has been told on several occasions it will be necessary for him to complete a men’s non-violence program as well as demonstrate consistency in maintaining contact with Sharu once he is released from jail” (at 5). It further states that father was receiving “service planning . . . regarding services needed to assist in reunification with his son, such as referrals/ recommendations to the men’s non-violence 26-week program” (at 8). The report summarizes however that father “is not able to complete recommended services while in jail as such services are not offered . . . Upon his release [from] jail, the caseworker will assist [father] in securing recommended services” (at 8).
The next report “prepared on 1/22/07” for a permanency hearing originally scheduled for July 2007 states that father needs to engage in services “mainly anger management, domestic violence and parenting classes and demonstrate an ability to safely, adequately care for his son in order for the Department to support reunification ... It will be important to determine
Father testified that he completed an anger management program (anger replacement training) — a prerequisite for any inmate. Ms. Montesano testified that although father completed such program, after completion he had prison infractions that resulted in him being sent to a special housing unit and later transferred to another prison. She testified that after father’s release from prison he would still need intensive anger management, to complete parenting and therapy as he has very severe emotional issues. Ms. Montesano testified that she spoke with father’s prison counselor Ms. Meldanado from Orleans Correctional Facility on June 21, 2007 and she told her that father has extreme anger issues and would need anger management counseling to effectively parent. Ms. Montesano testified that father was incarcerated at Maree, Collins and Orleans and she believes she has spoken to his counselors at all three facilities. Father testified that after he came out of the special housing unit he learned to avoid confrontations using aggression replacement training techniques. Since then he has had only one non-anger management infraction in prison.
E. Planning
Respondent offered two resources, Kathleen W and his sister Phyllis W Ms. Montesano testified that she spoke with Kathleen W. on September 13, 2007 and she indicated she would be a resource but only until father is released from prison to prevent father’s parental rights from being terminated. She indicated to Ms. Montesano that she did not want to be a permanent placement for Sharu. Respondent’s sister does not qualify as a resource because she has a criminal history and is allegedly an alcoholic.
Ms. Montesano testified that in order for father to be reunited with Sharu he needs to demonstrate that he can parent consistently and can stay out of prison. He would need to complete parenting and anger management programs and have monitored visitation with Sharu. She testified that she could not give a time frame for how long such reunification would take.
Father testified that he was incarcerated twice before: first, in 1990 for criminal possession of a controlled substance with
Statement of Law
Family Court has continuous jurisdiction from the day a child is placed in foster care until the date that permanency is achieved (Family Ct Act § 1088). Family Court must hold permanency hearings every six months when a child continues in an out-of-home placement (Family Ct Act § 1089 [a] [3]). The Department has the executive discretion to change its permanency goal and to file a petition for termination of parental rights but Family Court has the ultimate authority both to “approve [ ] or modifly]” the permanency goal (Family Ct Act § 1089 [d] [2] [i]) and to grant or deny the Department’s termination petition. One purpose of a permanency hearing is to audit, under a preponderance of the evidence standard, whether an agency is meeting its legal obligations and to review a parent’s compliance with the approved service plan (Matter of Tatiana R.,
The court may direct the Department to “undertake diligent efforts to encourage and strengthen the parental relationship when it finds that such efforts will not be detrimental to the best interests of the child . . . Such efforts shall include encouraging and facilitating visitation with the child by the parent” (Family Ct Act § 1089 [d] [2] [viii] [F]). The court may also require the Department to make progress reports to the court, the parties and the child’s law guardian on the implementation of such order (Family Ct Act § 1089 [d] [2] [viii] [G]).
An incarcerated parent must have a “realistic and feasible” alternative to having his child remain in foster care until his release from prison (Matter of Love Russell J.,
The facts at issue herein are more similar to Matter of Latasha F. than to Matter of Baby Girl C. First, father’s earliest release date is less than six months away and his definite release date is in approximately 22 months. Second, the Department did not exercise diligent efforts. Although the court repeatedly ordered the Department to facilitate monthly prison visitation, it is unclear how many times father actually was offered visitation with Sharu. The visitation was offered sporadically at best and much of it occurred only because the court scheduled it on court appearance dates. Third, the permanency reports are not clear as to what services father needs to complete. While the first report requires only a men’s nonviolence program, later reports require additional services. More confusing, while the first report indicates that father will be referred to a nonviolence program after his release from prison, a later report indicates that the Department should investigate whether the available prison programs are adequate. Father never had a clear mandate of what was required for reunification with Sharu.
Compelling too, here father was not named as a respondent in the neglect proceeding. He never had a dispositional order requiring services, instead voluntarily chose to engage in services to be reunited with Sharu.
While the Department contends that father has not planned for Sharu’s future, father named Kathleen W as a resource as early as January 2007. The Department only recently (by a telephone conversation of September 13, 2007) determined that Ms. W would be willing to commit as a resource for Sharu until father’s release from prison. The Department argues that this is not a permanent resource for Sharu because Ms. W. will act
The court thus exercises its authority and modifies the Department’s permanency goal back to “Return to Parent” (Family Ct Act § 1089 [d] [2] [i]) and orders the Department to undertake diligent efforts to encourage and strengthen father’s relationship with Sharu (Family Ct Act § 1089 [d] [2] [viii] [F]). The Department must facilitate not less than monthly visitation between father and Sharu and shall document when such visits occur. The Department must follow up to ascertain whether the nonviolence program completed by father in prison satisfies their mandate, and if it does not shall refer father to an appropriate program immediately upon his release from prison. The Department must contact Ms. W to ascertain her willingness to act as a resource for father and shall explain contingent time lines depending on when father is released from prison and how long program completion may take. At the same time, the Department should research adoptive resources for Sharu. The court may adjudicate a particular goal yet direct the Department to engage in concurrent planning (Family Ct Act § 1089 [c] [4] [iii]; [d] [2] [iv]). The Department shall make a progress report to the court, the parties and the Law Guardian in eight weeks (Family Ct Act § 1089 [d] [2] [viii] [G]). The Department may proceed with its TPR petition but should be cognizant that its burden of proof in a TPR proceeding is clear and convincing evidence — a higher standard than preponderance of the evidence — the standard employed at this permanency hearing (see Matter of Tatiana R., supra).
Now, therefore, it is hereby ordered that the permanency goal for Sharu shall be return to parent (father); and it is further ordered that the Department submit a permanency planning order for father consistent with this decision.