| Matter of Cristella B. |
| 2009 NY Slip Op 06426 [65 AD3d 1037] |
| September 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Cristella B. Suffolk County Department of SocialServices, Respondent. Ana A. et al., Respondents. Shannon et al., Nonparty Respondents; RobertC. Mitchell, Nonparty Appellant. (Proceeding No. 1.) In the Matter of Elizabeth B. SuffolkCounty Department of Social Services, Respondent; Ana A. et al., Respondents; Shannon et al.,Nonparty Respondents; Robert C. Mitchell, Nonparty Appellant. (Proceeding No. 2.) In theMatter of Jose B. Suffolk County Department of Social Services, Respondent; Ana A. et al.,Respondents; Shannon et al., Nonparty Respondents; Robert C. Mitchell, Nonparty Appellant.(Proceeding No. 3.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Jeffrey P. Tavel of counsel), forpetitioner-respondent.
In three related child protective proceedings pursuant to Family Court Act article 10, theattorney for the children appeals, as limited by his brief, from (1) so much of an order of theFamily Court, Suffolk County (Tarantino, J.), dated November 21, 2008, as amended by an orderdated December 5, 2008, as fixed a schedule for visitation, and (2) so much of an order of thesame court [*2]dated January 20, 2009, as, after a permanencyhearing, in effect, approved the permanency goal of returning the children to the parents anddirected that the children be returned to the care and custody of the parents on January 30, 2009.By decision and order on motion of this Court dated February 17, 2009 [2009 NY Slip Op63684(U)], as amended by a decision and order on application of this Court dated March 31,2009 [2009 NY Slip Op 68159(U)], enforcement of the order dated January 20, 2009, was stayedto the extent that the children were remanded to the custody of the Suffolk County Departmentof Social Services for their continued placement with their foster family pending hearing anddetermination of the appeals.
Ordered that the appeal from the order dated November 21, 2008, as amended by the orderdated December 5, 2008, is dismissed as abandoned (see 22 NYCRR 670.8 [h]); and it isfurther,
Ordered that the order dated January 20, 2009 is reversed insofar as appealed from, on thelaw, on the facts, and in the exercise of discretion, without costs or disbursements, and the matteris remitted to the Family Court, Suffolk County, for further proceedings consistent herewith.
The subject children Cristella B., Elizabeth B., and Jose B. were removed from theirbiological parents in September 2006 as a result of allegations that, among other things, the oldersiblings of the subject children sexually abused Cristella, and that the mother, Ana A., failed toprotect Cristella from that abuse. After a hearing, the Family Court found that the motherneglected Cristella, and derivatively neglected Elizabeth and Jose. The subject children werethen placed into nonkinship foster care. No finding of neglect was entered against the biologicalfather, Dolores B.
At a contested permanency hearing pursuant to Family Court Act § 1089, the SuffolkCounty Department of Social Services (hereinafter the petitioner) sought to have the FamilyCourt approve the permanency goal of returning the children to their parents. The petitionerargued that the children were not yet ready to be reunited with their parents. In contrast, theattorney for the children asserted that, with respect to Cristella, the appropriate permanency goalshould be placement in another permanent living arrangement, and that for Elizabeth and Jose,the appropriate permanency goal was adoption by the foster parents. Following the hearing, theFamily Court, in an order dated January 20, 2009, inter alia, approved the goal of returning all ofthe subject children to their parents, and directed that the subject children were to be returned tothe parents on January 29, 2009. The attorney for the subject children appeals, and we reverse.
Family Court Act article 10-A governs permanency hearings for children placed outside oftheir homes. The purpose of the article is "to provide children placed out of their homes timelyand effective judicial review that promotes permanency, safety and well-being in their lives"(Family Ct Act § 1086). Family Court Act § 1089 (d) provides that "[a]t theconclusion of each permanency hearing, the court shall, upon the proof adduced . . .in accordance with the best interests and safety of the child . . . determine and issueits findings, and enter an order of disposition in writing." Under the statute, the Family Court isgiven authority to "[approve] . . . or [modify]" the permanency goal, which may be"return to parent," "placement for adoption," "permanent placement with a fit and willingrelative," or "placement in another planned permanent living arrangement that includes asignificant connection to an adult willing to be a permanency resource for the child" (Family CtAct § 1089 [d] [2] [i] [A], [B], [D], [E]; see Matter of Amber B., 50 AD3d 1028, 1029 [2008]). At apermanency hearing, the petitioner bears the burden of establishing the appropriateness of apermanency goal, or a goal change, by a preponderance of the evidence (see Matter ofAmber B., 50 AD3d at 1029; Matter of Nigel S., 44 AD3d 673 [2007]; Matter of Darlene L., 38 AD3d552, 554 [2007]).
Under the circumstances, the permanency goal of returning the children to their parents isnot in the children's best interests. Notwithstanding the purported efforts of the parents tore-establish a positive relationship with their children, none of the children are likely tosuccessfully reintegrate into their parents' household in the near future.
Even though the offending older siblings either are incarcerated or have been deported, thetrauma of their sexual attacks on Cristella, and derivatively, her siblings, Elizabeth and Jose,[*3]combined with mother's refusal to believe Cristella, intercedeon her behalf, or protect her, has not yet been erased. In light of the passage of time since the lastpermanency hearing, a new hearing should be promptly scheduled afterpsychiatric/psychological forensic evaluations and a home study are conducted to allow acomplete review of all available options that would promote the best interests of the children,including, but not limited to, the adoption of one or more of the children.
In addition, the Family Court erred in directing the petitioner to return the subject children tothe parents' care and custody on January 29, 2009. At the hearing, evidence was adduceddemonstrating that Cristella was reluctant to return to her parents' home. Furthermore, theevidence demonstrated that Elizabeth and Jose preferred not to visit with the parents and thatthey wished to be adopted by their foster parents. Indeed, Elizabeth and Jose were rude anddisrespectful towards their mother during the visits. The evidence indicates that the subjectchildren were upset that their parents failed to protect them from the abusive conduct which ledto their removal from the parents' care in the first instance. Moreover, the therapists who treatedthe subject children and supervised the visits opined that the mother was not currently capable ofmeeting the needs of the children, in part because Elizabeth and Jose did not have an attachmentto her and because she had difficulty in understanding what the children had experienced. Inlight of these factors, it was not in the children's best interests to be immediately returned to theparents' care, and the Family Court's decision to return the subject children to the parents onJanuary 29, 2009, was premature.
The remaining contentions of the attorney for the children are without merit. Rivera, J.P.,Florio, Dickerson and Austin, JJ., concur.