Rosin & Reiniger, New York City (
Ben Rosin of counsel), for Salvation Army, petitioner.
June Callwood, New York City, for Tamara S., respondent.
Barbara Milbauer, New York City, for Derek R., respondent.
Legal Aid Society, New York City (
Monica Drinane and
Natalie Albert of counsel),
Law Guardian.
OPINION OF THE COURT
MARY E. BEDNAR, J. The subject children in this termination of parental rights proceeding—Keyonna R. (born on May 23, 1995) and La'Asia While being cross-examined the father downplayed the incident of domestic violence that landed him in jail. "Q: Isn't it true that you were arrested in December of '98 because you assaulted Tamara with a knife? "A: I didn't assault her. "Q: What did you do that got you arrested in December of '98? "A: We had an argument. "Q: Did you touch her? "A: No. "Q: You just had an argument? "A: An argument and I had a knife. We were talking but I didn't hurt her. "Q: You did have a knife? "A: I had a knife. I was holding a knife and we were arguing." (Transcript, Mar. 6, 2001, at 9, lines 5-18.) The father also refused to acknowledge that he has an alcohol problem. "Q: At the time the children were taken away from you, did you have a problem abusing alcohol? "A: I got drunk once, yes. "Q: Besides getting drunk once, at the time the children were taken away from you, did you have a problem drinking alcohol many times and drinking too much alcohol more than once? "A: Not every day." (Transcript, Mar. 6, 2001, at 54, lines 2-10.) Overall the father expressed no understanding as to why Keyonna is in foster care. He testified that:
"The reason—they had no reason to take away the children. The parents have rights. The social workers came to the house without an interpreter. She was talking to us and then she looked around at the apartment, she said it looked nice. And then after that, two days later, they told us to go to court and they took the kids. They thought I was abusing the kids, which is not true. There was no proof." (Transcript, Mar. 6, 2001, at 53, lines 14-23.)
The evidence regarding the mother revealed that when she lived in Michigan she was enrolled for 14 months at the Chelsea Ann Arbor Treatment Center, where she received substance abuse counseling, domestic violence counseling, and
Ms. Grossinger opined that ASL was the father's first language. This preference, according to the witness, makes it hard for the father to grasp complex concepts conveyed in English. But she allowed that complex concepts conveyed orally or in writing could be understood by the father, provided that the ideas had been conveyed through ASL at some previous time.
Abandonment Claim
Social Services Law § 384-b (5) (a) provides, in pertinent part, that: "a child is `abandoned' by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency." The abandonment period is calculated from "six months immediately prior to the date on which the petition is filed in the court * * *" (Social Services Law § 384-b [4] [b]). In all termination of parental right cases, the agency must prove their case by clear and convincing proof. (See, Social Services Law § 384-b [3] [g].) The Law Guardian and agency ask that the contacts the father had with the agency and child between March 13, 2000 and September 14, 2000 be deemed incidental contacts that do not interfere with the abandonment. There are abandonment cases where infrequent contacts have been found to be incidental (see, Matter of Female W., 271 AD2d 210 [1st Dept] [telephone call to agency and two contacts with foster parents does not defeat abandonment]; Matter of Richard X., 226 AD2d 762 [3d Dept] [one visit with child was insufficient to defeat abandonment claim where respondent missed several scheduled visits and hadn't otherwise visited the child in over one year]; Matter of Orange County Dept. of Social Servs. [Christine S.], 203 AD2d 367 [2d Dept] [evidence of one or two contacts with children while mother was incarcerated does not defeat abandonment claim]). The respondents' overall behavior in the above cases indicated that they lacked sustained interest in their children. In the instant case, however, the father traveled to New York from Michigan at least three times during the abandonment period hoping to visit Keyonna, called the agency on March 13, 2000 and March 31, 2000 and physically appeared at the agency on March 16, 2000. In addition, he left money for Keyonna when visiting her on Easter Sunday 2000.[11] Even if, as the Law Guardian suggests, the father's visits to New York were motivated by a desire to see the mother, the behavior of the father between March 13, 2000 and September 14, 2000 demonstrates that he had a sincere interest in maintaining a relationship with his daughter. The father's actions, thus, are sufficient to defeat the abandonment claim.
Permanent Neglect
Social Services Law § 384-b (7) (a) provides, in pertinent part, that a "`permanently neglected child' shall mean a child who is in the care of an authorized agency and whose parent * * * has failed for a period of more than one year[12] following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship * * * ." Diligent efforts are defined as: "reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including * * * "(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family * * * "(5) making suitable arrangements with a correctional facility * * * for an incarcerated parent to visit the child within the correctional facility * * * When the parent is incarcerated in a correctional facility located outside the state, the provisions of this subparagraph shall be construed to require that an authorized agency make such arrangements with the correctional facility only if reasonably feasible * * *" (Social Services Law § 384-b [7] [f]). "[T]he threshold inquiry * * * in any [permanent] neglect proceeding must be whether the agency exercised diligent efforts to strengthen the parental relationship." (Matter of Star Leslie W., 63 NY2d 136, 142.) In evaluating the sufficiency of The agency did everything that they could reasonably be expected to do given the father's lack of cooperation. (See, Matter of Dimitris VV., 276 AD2d 845 [3d Dept].) "The agency is `not charged with a guarantee that the parent succeed in overcoming his or her predicaments. Indeed, an agency that has embarked on a diligent course but faces an utterly un-co-operative or indifferent parent should nevertheless be deemed to have fulfilled its duty.'" (Matter of Jamie M., 63 NY2d 388, 393, quoting Matter of Sheila G., 61 NY2d 368, 385.) The court recognizes that the difficulty of expressing the future, past and present tenses in English to a person who primarily communicates in ASL, might have made it difficult for Mr. R. to understand Mr. Lopez regarding the need to give advance notice of his trips to New York. Otherwise the testimony of the sign language expert cast no doubt on the respondents' ability to understand Mr. Lopez. Even though the difference in syntax between American Sign Language and English may affect a hearing impaired person's comprehension of abstract concepts conveyed orally or in writing, the need to be tested for drugs, obtain housing, go for a psychological evaluation, or refrain from domestic violence are straightforward enough requests to be understood by someone with a rudimentary understanding of English. Both respondents were clearly unreceptive to the service referrals made by the caseworker, and each parent believed that the children were removed from their care without cause. The respondents' refusal to take responsibility for their shortcomings made the caseworker's task in referring the parents for services even more difficult. (See, Matter of Adrian M., 270 AD2d 93 [1st Dept]; Matter of Jessica Lynn W., 244 AD2d 900 [4th Dept]; Matter of Chianti FF., 205 AD2d 849 [3d Dept] [cases which say that parents' lack of cooperation can't be blamed on the agency].) For all of the reasons stated herein, the court finds by clear and convincing evidence that the agency has sustained their causes of action for permanent neglect against both respondents. The cause of action for abandonment against the respondent father is dismissed. [1] The children are in a nonkinship foster home. [2] It is unclear from the father's testimony as to why he did not enroll in a domestic violence program. At first he said there was a long waiting list, then he testified that he wanted to complete the alcohol rehabilitation program first. [3] It was unclear from the testimony what the father's conviction was for, although it was related to domestic violence. [4] On direct examination the father said he contacted the agency in mid-July 1999 and arranged a visit with Keyonna. But on cross-examination the father testified that after leaving prison he first contacted the agency in October 1999. The father's recollection on cross-examination corresponds with Mr. Lopez's case record. [5] It was the caseworker's practice to have the foster parent and father arrange for visitation directly between themselves, given the routinely short notice of visitation by the father. [6] Mr. Lopez found it effective to leave messages for the respondent father with the grandfather, since the father and grandfather were in frequent communication with one another. [7] Judge Jurow's order of August 3, 1998 specified that the agency was not responsible for the respondent's travel expenses, but the agency sometimes reimbursed the father anyway. [8] There was no testimony, however, about whether the father sent cards to Keyonna during this period. [9] All together 16 sessions had been scheduled, but BFL cancelled three of them. The only program the mother had success at was a parenting skills course, which she completed in 1997. [10] A sign language interpreter becomes "certified" upon passing evaluations given by the Registry of Interpreters for the Deaf, a national organization. [11] The money transfers entered into evidence by the respondent will not be credited by this court as child support payments as they were made out to the mother at a time period she did not have custody of the children. [12] The one year period may be any consecutive one year period during the placement period. (See, Matter of Star Leslie W., 63 NY2d 136.) [13] The ADA is federal legislation which requires public entities or private entities receiving federal assistance to make reasonable accommodations for persons with disabilities. [14] State in Interest of B.K.F., 704 So 2d 314 (La 1997); In re Antony B., 54 Conn App 463, 735 A2d 893 (1999); In re B.S., 166 Vt 345, 693 A2d 716 (1997); In re Adoption of Gregory, 434 Mass 117, 747 NE2d 120 (2001). [15] In re Angel B., 659 A2d 277 (Me 1995); In Interest of C.M., 526 NW2d 562 (Iowa 1994); In re Welfare of A.J.R., 78 Wash App 222, 896 P2d 1298. [16] In re C.M., 996 SW2d 269 (Tex 1999). [17] Matter of Latasha W., 268 AD2d 340 (1st Dept); Matter of Francois Jean B., 200 AD2d 524 (1st Dept); Matter of Jason Anthony S., 277 AD2d 389 (2d Dept). [18] See, Matter of John ZZ., 192 AD2d 761 (3d Dept); Matter of Female J., 202 AD2d 340 (1st Dept); Matter of Tasha Monica B., 156 AD2d 247 (1st Dept) (cases where permanent neglect was found, in part, because parents refused to get psychological evaluations). [19] Commuting difficulties have been held to be an inadequate excuse for a failure to visit. (See, Matter of G., 79 Misc 2d 731 [Sur Ct, NY County], revd on other grounds 51 AD2d 282 [1st Dept].)