Matter of Nicholas M.

Richard E. Davidson for petitioner.

Ronald L. Van Norstrand, Law Guardian.

Gerald Serlin for parents.

OPINION OF THE COURT

MICHAEL L. HANUSZCZAK, J. On November 14, 2000, respondent, a hearing-impaired child, was deemed placed in foster care within the meaning of Family Court Act § 355.5, and placed in the custody of the New York State Office of Children and Family Services (hereinafter OCFS) following a finding that the respondent had committed an act which if committed by an adult would constitute the crime of endangering the welfare of a child. The order of placement was entered for an initial term of one year expiring July 20, 2001, with credit for time spent in detention, pursuant to section 353.3 of the Family Court Act. On April 23, 2001, the petitioner timely filed a petition for a 12-month extension of placement, pursuant to Family Court Act § 355.3. Respondent's Law Guardian opposes the extension of placement and seeks a modification of said placement on the grounds that the OCFS placement is not the least restrictive and fails to provide the respondent with the services he needs. The petition was initially heard on May 16, 2001, at which time a pretrial conference was scheduled for May 31, 2001. Since the parties were unable to reach agreement at the pretrial conference, a hearing date was scheduled. On July 5, 2001, the hearing as to the extension of the respondent's placement commenced, but could not be completed that day. Pursuant to section 355.3 (5) of the "incapable of providing an appropriate, effective treatment program given [respondent's] disability." (Respondent's letter mem at 2.) Lastly, the respondent claims that OCFS has failed to provide the special education services that were previously provided to the respondent by his former public school district, which are delineated in his individualized education program, a copy of which was provided to OCFS.

(1) Least Restrictive Placement

In determining whether a placement is the "least restrictive" available option, the court must examine whether the placement balances the needs and best interests of the respondent with the need to protect the community. (Matter of Sabrina S., 256 AD2d 914 [3d Dept 1998].) In this instance, the court disagrees with the respondent's position that placement with OCFS is not the least restrictive alternative for placement. On November 14, 2000, this court determined, after balancing the needs and the best interests of the respondent as well as the need for protection of the community, that the least restrictive placement for this respondent was with the New York State Office of Children and Family Services, pursuant to Family Court Act § 352.2 (1), (2) (a). The respondent has offered no factual evidence here to suggest that there has been a change in circumstances that previously led this court to hold that Nicholas, an adjudicated juvenile delinquent, is in need of the type of treatment and placement offered by the Office of Children and Family Services. In contrast, evidence to support the necessity of respondent's completion of the OCFS sex offender treatment program was presented at the hearing by petitioner, and this evidence supports this court's finding that the respondent continues to be a risk to the community. Currently, the respondent participates in a sexual offender treatment program that includes a behavior component in the respondent's unit as well as a cognitive group that meets twice a week, which includes additional individual meetings with his psychologist to facilitate participation. An interpreter is provided in all treatment groups, as well as in individual counseling meetings. Every effort is made to insure that the same interpreter is available most of the time. In addition, the respondent has been under the care of a psychiatrist with whom he meets once every four to five weeks. Petitioner's exhibit No. 4, offered and received into evidence at the hearing, is a report prepared by Peter Leising, a psychiatric social worker, associated with the Children's Psychiatric Center of Western New York. Mr. Leising was not called as a home at this time. As both Mr. Gaehring and Dr. Ostromogolsky testified, the optimum treatment for this youngster would be founded upon the whole family's involvement in therapy. Respondent's family does not choose to participate in such treatment at this time. As noted above, the treatment option advocated by the respondent, and testified to by Mr. Gaehring, does involve a family-centered approach, which is not possible at this juncture. Further, the OCFS psychologist testified that the respondent has developed an inability to form attachments to other people. The court finds that to discontinue respondent's sex offender treatment at OCFS with the psychologist the respondent has been working with since May, and to place him in a different facility, could potentially exacerbate the respondent's alleged inability to form attachments and sever the therapeutic relationship currently formed with his present psychologist. The respondent questions the alleged failure of OCFS to investigate and/or to secure other, less restrictive placement. Dr. Ostromogolsky testified, however, that OCFS did investigate Hillside Children's Center. This site was rejected, however, because Hillside's only residential placement was operated by the Office of Mental Health. As the respondent has not been determined to present such mental health issues that would substantiate such placement, Hillside could not take him for residential placement. OCFS maintains that residential placement is necessary in order for the respondent to receive the type of close supervision he needs. The court agrees that placement of the respondent with DSS in a nonresidential program would not provide this level of supervision. Therefore, the court finds that the respondent's placement with OCFS remains the least restrictive alternative available in order to provide the respondent with the treatment he needs and to protect the community, in accordance with the court's mandate under Family Court Act § 352.2 (2) (a).

(2) Effective and Equal Treatment

Respondent's counsel also asserts in his letter memorandum that OCFS is "incapable of providing an appropriate, effective treatment program given [respondent's] disability." The respondent argues that placement with OCFS denies him "effective and equal" treatment due to an alleged failure of OCFS to provide the respondent with a counselor fluent in American Sign Language (hereinafter ASL). The respondent refers this court to title II of the Americans With Disabilities Act (hereinafter ADA), which mandates that: "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (42 USC § 12132.) Title II defines a "public entity" as "any department, agency, special purpose district, or other instrumentality of a State or States or local government." (42 USC § 12131 [1] [B].) Therefore, OCFS is a public entity for purposes of the ADA as OCFS is an agency of the State of New York, created by statute, and operating thereunder. (Executive Law § 500 et seq.) The phrase "qualified individual with a disability" is defined by title II as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices" is otherwise eligible to receive the government services in question. (42 USC § 12131 [2].) "Disability" is defined as a "physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." (42 USC § 12102 [2] [A].) "Major life activities" is defined by regulations governing the ADA to include an individual's ability to hear. (28 CFR 35.104 [2].) Respondent is a hearing-impaired child, and he is therefore disabled for purposes of the ADA. The ADA prohibits a public entity from excluding persons with disabilities from enjoying the same benefits afforded to the general population. Under the ADA, a public entity, in providing any aid, benefit, or service, may not directly commit the following:

"(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

"(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

"(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others." ( 28 CFR 35.130 [b] [1] [i]-[iii].)

As OCFS is a public entity, and the respondent is a qualified individual with a disability, the issue then becomes whether the respondent is being denied the benefit of a service by reason progress at Oatka, the court is not persuaded that the respondent is not receiving "effective" and "equal" treatment as a result of the absence of a therapist fluent in ASL. There is every indication that the respondent can understand most, if not all, that is being communicated to him, and that where it is suspected he has not fully comprehended, the staff is sensitive to the need to ensure comprehension. Respondent also argues that spoken English cannot be translated word-for-word due to the nature of ASL. Thus, respondent argues that comprehension may be lost through the use of an interpreter to translate. However, the respondent has not presented sufficient evidence that this language barrier affects the counseling of hearing-impaired individuals in general, or more specifically the respondent. The respondent is provided with an ASL interpreter in every class and he has done very well academically, as is evidenced by his academic record since his placement with OCFS. The same ASL interpreter also translates during the respondent's therapy sessions, and therefore, without proof to the contrary, the court finds that he understands his therapist as well as his academic teachers. The respondent further asserts that the interpreter's presence in counseling forms an alleged obstacle to the "equal" and "effective" treatment for the respondent. The respondent maintains that the presence of a third person must necessarily impede the development of a confidential, trusting, therapeutic relationship. Once again, the respondent did not submit any evidence to support this assertion. Instead, the respondent's psychologist testified to the continuous utilization of the same interpreter during both the respondent's group and individual treatment sessions. The psychologist also testified that she was attempting to integrate the interpreter as an active participant in the group therapy sessions in which the respondent participates. The court finds that the respondent did not present sufficient evidence of the denial of benefits of the services provided to him at OCFS, by reason of his disability, such as would support his allegations of an ADA violation.

(3) Individualized Education Program

Notwithstanding the court's prior finding that the respondent has not proven his allegations that the respondent's current placement with OCFS violates the ADA, the court does find that the absence of special education services as outlined in the respondent's individualized education program (hereinafter IEP) may result in the respondent not receiving the services for the respondent to return home, and, therefore, OCFS was not required to make reasonable efforts in that regard. (Family Ct Act § 355.3 [4] [i].) Respondent's parents do not desire the respondent to return to their home, and they have not visited the respondent at the OCFS limited secure facility at which he has been placed since November 2000. Moreover, the victim still resides in her parents' home, and reasonable efforts to return the respondent at this time would be inappropriate. The respondent is currently enrolled in therapeutic treatment which has as its goal his return to the community when same becomes appropriate. The court permitted OCFS to amend the respondent's permanency goal set forth in its petition in open court to reflect that the respondent's goal should more properly be that of independent living, and this court hereby approves the amended permanency plan. It is hereby ordered that the respondent's placement with the New York State Office of Children and Family Services is hereby extended for an additional period of 12 months, from July 20, 2001 to July 20, 2002. In the event that placement with the authorized agency is discontinued, the Office of Children and Family Services shall notify the court, the Presentment Agency, Law Guardian, and parent or other person responsible for the respondent's care, of the reason for discontinuing placement with the authorized agency and the level and location of the respondent's placement; and it is further ordered that the permanency plan for the respondent is hereby approved, and that reasonable efforts be made to implement said plan; and it is further ordered that the petitioner shall provide the parents of the respondent with visitation as follows: visitation at the facility on Saturdays and Sundays from 1:30 P.M. to 3:30 P.M., telephone calls and conference; and it is further ordered that service of this order upon the parties by regular first-class mail shall be deemed sufficient service.