MATTER OF KEVIN M.

Richard S. Usen (Edward McGuinness of counsel), for Erie County Department of Social Services. Legal Aid Bureau of Buffalo, Inc. (Pamela L. Neubeck of counsel), Law Guardian. Mary M. Donogher for respondent. Hollis M. Hite for Lorie Doe.

OPINION OF THE COURT

MARJORIE C. MIX, J. At issue is the present foster care status of Kevin M., born on January 21, 1993. During a recent witnessed hearing regarding the discontinuation of parental visitation, the court was informed that Kevin has been removed from school by the foster parents, has manifested serious psychological problems, and is not receiving psychological or psychiatric treatment. Further, the testimony of the court-appointed psychological evaluator indicated that Kevin has been enabled in his identification of his foster placement with the Doe family as a permanent home, and is being permitted to identify himself as "Michael Doe," although his parent's rights have not been terminated. (See, decision and order, entered Jan. 25, 2001, discussed infra.) In order to address the above matters, a witnessed hearing was held regarding Kevin's foster care placement on February 27, 2001. Present were counsel for the Erie County Department of Social Services (hereinafter the Department), respondent mother Danielle S. and her counsel, foster parent Lorie Doe and her counsel, and the Law Guardian. Background On January 19, 2001, a hearing was held on the motion of the Erie County Department of Social Services and the Law Guardian to suspend parental visitation as contrary to the best interests of Kevin and his sister, who are placed in separate foster homes. At that hearing, the Department presented the testimony of licensed clinical psychologist Dr. Eloise O'Brien, who was appointed to conduct a psychological evaluation relative to visitation issues on the consent of all parties. In its January 25, 2001 decision and order, the court recapitulated Dr. O'Brien's testimony:

"Dr. O'Brien described Kevin as a timid child, with extreme fears of his biological mother and a number of mechanisms and myriad rituals he has developed for disguising himself to protect himself from her. Seven year-old Kevin insists on being known as `Michael Doe', wears jingle bells to bed at night in fear of being kidnaped by Respondent S., and has shaved his head and wears glasses in order to be unrecognizable to her. Described by Dr. O'Brien as having extreme fears and anger at Respondent S., Kevin insists that she tried to kill him and Kelsie and that he can remember an incident when his mother threw Kelsie against a wall. While Dr. O'Brien observed that Kevin's account of this incident has changed over time, and that adult suggestions can result in `helping a story along', Kevin's belief in the story and his fear are very real."

After deciding the motion for the discontinuation of parental visitation, the court addressed the issues related to Kevin's present foster care status:

"Dr. O'Brien's testimony raises concerns regarding the history and present circumstances of Kevin's foster care placement. Kevin does not consider his present placement to be a foster home, and identifies his present foster mother as his `real mom' and her children as his real siblings. This suggests that the foster family has persistently treated him as a child of the family, and that the Department has done little to discourage this treatment. It appears that the foster parents have not properly equipped Kevin to understand his situation, perhaps because the family was inaccurately and improperly told by the Department caseworker at the time of placement that there was `zero chance' that Kevin would be returned to his parents. (Court Exhibit 1, p. 3.) Dr. O'Brien's testimony also suggests that Kevin has had adult assistance in `helping the story along' regarding Respondent S.'s past abusive conduct, raising questions as to who may have prompted and encouraged such parental alienation. Thus, it preliminarily appears that in addition to being harmed by parental abuse, Kevin may have also been harmed by inappropriate continuing care."

"Further, it is reported to the Court that Kevin is being home schooled; particularly in view of Kevin's significant emotional problems, the Court is concerned that this foster care child is not receiving the professional intervention which could be provided by certified educators and psychologists, and is being deprived of the broader opportunities for socialization in a traditional school setting. These issues, manifest on the record, warrant an expeditious review and hearing regarding the foster care status of Kevin M." (Decision and order, entered Jan. 25, 2001.)

Accordingly, in addition to granting the motion of the Department and the Law Guardian to discontinue parental visitation for reasons elsewhere discussed in the decision and order, the court further ordered that a review and hearing regarding the foster care status of Kevin M. be held on February 27, 2001.

The Foster Care Status Hearing

At the February 27, 2001 foster care status review hearing, the Law Guardian presented the testimony of Kevin's counselor Jean Gauthier, foster care provider Lorie Doe, and caseworker Cherri Carroll. The Department, the respondent, and the foster parent did not present witnesses. Jean Gauthier testified that she is affiliated with the Niagara Life Center in Fort Erie, Ontario, where she works with youth and provides family and children's services. Ms. Gauthier was an undergraduate at George Brown College, where she received a "Child Worker" diploma, and completed one year of a two-year course in postgraduate psychology studies at York University. In April of 2000, when Kevin was still attending the Christian Academy, his teacher referred him to Ms. Gauthier because of issues of self-control and self-mutilation. Kevin has since been removed from the Christian Academy by the foster parents, and is presently being "home schooled" by foster parent Lorie Doe. According to Ms. Gauthier, at the time of the referral, Kevin had been displaying aggression, getting up in the middle of the night, and destroying property. Ms. Gauthier testified that, since April of 2000, she has met with Kevin about 10 times for 3-4 hours per visit. She claimed that Kevin has shown improvement, in that he was very reserved and fearful at first, but now has "opened up," his behavior has changed, and he is no longer destructive. Ms. Gauthier testified that while Kevin had previously shaved his head in an effort to hide from respondent S., he is now letting his hair grow. Ms. Gauthier also opined that Kevin has been excited about home schooling, talks about friends who come over, and in her opinion does not miss school socialization. Ms. Gauthier habitually referred to Kevin as "Michael," even after being requested by the court to refer to the child by his The Law Guardian's final witness was Cherri Carroll, an adoption and foster care worker with the Gateway-Longview agency, the agency which placed Kevin with these foster parents. Ms. Carroll, who has been Kevin's caseworker since November of 1999, testified that Kevin's behaviors are beginning to minimize, but she gave no specific reasons for that opinion. She opined that she is not concerned about Kevin's placement with the Does. Following Ms. Carroll's testimony, the Law Guardian and the other parties rested, and the court reserved decision.

Findings of Fact and Conclusions of Law

The court does not doubt that Ms. Doe is well intentioned, and has genuinely tried to provide for Kevin's physical, emotional, and educational needs. However, there is ample evidence in the record which demonstrates that Kevin is not receiving the special education and professional psychological intervention he needs. It is clear that neither counselor Gauthier nor foster care provider Doe have appropriately assisted Kevin in realistically dealing with his identity as Kevin M., a foster child. Rather, the evidence demonstrates that they have, at the very least, enabled Kevin to persist in the fantasy that he is "Michael Doe," that Ms. Doe is his real mother, and that her children are his true siblings. Both the counselor and the foster care provider habitually refer to Kevin as "Michael." Further, the foster parent must bear some responsibility for the bizarre and tragic lengths to which Kevin has gone to disguise himself from his mother. Little boys do not shave their own heads, unless they are being inadequately supervised. Seven-year-old children are not permitted to habitually wear glasses by appropriate caretakers, unless glasses have been prescribed for them. The court does not reach the issue, raised by Dr. O'Brien's testimony during the January hearing, that Kevin has had adult assistance in evolving the story of parental abuse, and thereby in demonizing his natural mother. It is sufficient to find that Kevin has been abetted by the foster parent in formulating an unreal identity as the member of a permanent family, and that he has not received professional psychiatric or psychological therapy to address this potentially catastrophic syndrome. The New York courts have on numerous occasions and in a variety of contexts admonished foster parents against conducting themselves in a manner inconsistent with their responsibility to prepare the child for eventual return to the parental home. Thus, the United States Supreme Court, in Smith v Organization of Foster Families for Equality & Reform (431 US 816, 837, n 40 [1977]), took notice that "the New York courts have upheld removal from a foster home for the very reason that the foster parents had become too emotionally involved with the child." (Citing Matter of Jewish Child Care Assn. [Sanders], 5 NY2d 222 [1959].) For example, in State ex rel. Wallace v Lhotan (51 AD2d 252, 255 [2d Dept 1976], lv denied 39 NY2d 705, appeal dismissed 39 NY2d 743), the appellate court observed that the foster parent had "a duty not to interpose herself between the children and their natural mother," and that her alienating behavior warranted court intervention. The Lhotan Court explained:

"In any case, the foster parents must make a serious attempt to encourage, not discourage, the improvement of relations between the children under their charge and a mother who is trying to re-establish the bonds of family love and concern. A portion of the love that foster parents have for the children must be directed towards easing their return to their natural parent. Whatever circumstances will rend the family fabric, it should not be the result of actions of the foster parents, who have taken on their delicate responsibilities on the solemn promise to do otherwise." ( Id., at 259.)

Similarly, in Matter of Jewish Child Care Assn. (Sanders) (5 NY2d 222, 229 [1959], supra), the Court of Appeals, this State's highest Court, held that the trial court had not abused its discretion in removing a child from the care of the foster parents, observing that "[i]ndeed, it is the extreme of love, affection and possessiveness manifested by the [foster parents], together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination." Again, in Matter of Spence-Chapin Adoption Serv. v Polk (29 NY2d 196, 205 [1971]), the Court of Appeals warned that "[t]he temporary parent substitute must keep his proper distance at all costs to himself." (See also, People ex rel. Ninesling v Nassau County Dept. of Social Servs., 46 NY2d 382, 389 [1978].) Even in an era of concurrent permanency planning, when the agency may simultaneously plan for the alternative outcomes of return of the child to the natural parent and adoption, the agency and the foster care provider cannot permit the Wherefore, it is ordered, decreed, and adjudged that Kevin M. be provided with the therapeutic services of a licensed psychologist or psychiatrist selected by the Erie County Department of Social Services to address the issues set forth herein, and such other issues as may appear to the psychologist or psychiatrist as necessary to assist Kevin; the Erie County Department of Social Services shall forward to such therapist a copy of this decision and order, and any prior decisions, orders, and agency records as may be of assistance; such therapeutic services shall be initiated prior to March 30, 2001; and it is further ordered, decreed, and adjudged that Kevin M. be enrolled in and commence regular attendance in a public or parochial school no later than March 23, 2001; should the Department, the Law Guardian, and the foster care provider agree that the child may attend a suitable parochial school, in no event shall the County be obligated to pay tuition or other expenses relative to such enrollment, except as may otherwise be required by law; and it is further ordered, decreed, and adjudged pursuant to Family Court Act § 255 that a Committee or Subcommittee on Special Education identify, review and evaluate Kevin M. as soon as practicable, and make recommendations to Kevin's legal custodian, the Erie County Department of Social Services, and the Board of Education as to appropriate educational programs and placement; the Erie County Department of Social Services shall render such information, assistance, and cooperation as is necessary to effectuate this directive; and it is further ordered, decreed, and adjudged that the recommendations made by the Committee or Subcommittee on Special Education relative to the education of Kevin M. be implemented, subject to the County's right as the child's custodian to object to such recommendations as provided by the Education Law. [1] Names used herein are fictitious for purposes of publication. [2] The extensive background of this matter is set forth in the court's decision under docket No. B-13408-09-1999, entered on May 5, 2000, which dismissed the Department's petition for a finding of permanent neglect; and the decision and order under docket No. N-28446-2000, entered on January 25, 2001, which granted the motion of the Department and the Law Guardian to suspend parental visitation as contrary to the children's best interests. Familiarity with the prior decisions and orders is presumed.