[*1]
Matter of T.S. v T. McG.
2015 NY Slip Op 50260(U) [46 Misc 3d 1223(A)]
Decided on February 4, 2015
Family Court, Kings County
O'Shea, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through September 22, 2015; it will not be published in the printed Official Reports.


Decided on February 4, 2015
Family Court, Kings County


In the Matter of T.S. A Child under 18 Years of Age Alleged to be Neglected By

against

T. McG. R.S. , Respondent.




NN0-09084/10



Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Aimee Turner, Esq., 330 Jay Street, Brooklyn, NY 11201, telephone (718) 802-2755

Richard A. Miller, Esq., for Respondent Mother, 186 Montague Street, Brooklyn, NY 11201; (917) 887-0884

Chas Budnick, Esq., for Respondent Father, Brooklyn Defender Services, 180 Livingston Street, Suite 300, Brooklyn, NY 11201; (347) 592-2508.

Amy Serlin, Esq., Juvenile Rights Practice, 111 Livingston St., 8th Floor, Brooklyn, NY 11201, (718) 250-4265


Ann E. O'Shea, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of the mother's motion for unsupervised visits, and the father's cross motion for unsupervised visits


On March 25, 2010, the Administration for Children's Services ("ACS") filed a neglect petition against Respondents, T. Mc.G. (the "Mother"), and R. S., (the "Father"), alleging, inter alia, that they neglected T. S., born on July 30, 2007, by reason of their drug misuse. T.S. was remanded and placed in foster care where she remains to this day.

On November 22, 2010, the Mother admitted that she misused crack cocaine and was not regularly participating in a drug treatment program at the time of the filing of the petition. On January 20, 2011, the Father submitted to the Court's jurisdiction and consented, without admission of wrongdoing, to entry of a finding of neglect against him. The Order of Disposition entered on January 20, 2011, required the parents to (1) enter and complete a drug treatment program; (2) complete parenting skills; and (3) undergo random urine testing and test negative. The Mother was also directed to cooperate with mental health services therapy and comply with medication recommendations. The Mother completed her drug treatment program on April 29, 2014, and has been testing negative for drugs since then. The Mother also attends therapy and is taking her medication as prescribed. The father completed his parenting class on December 8, 2011, most recently has been participating in a drug treatment program since August 11, 2014, and has tested negative for drugs since he enrolled. Both parents now seek the entry of an order granting them unsupervised visitation time with T. S. The Mother initially requested a once-[*2]per-week unsupervised day visit from 10:00 a.m until 6:00 p.m., then amended her request to unsupervised day visits for two hours sandwiched between supervised visits. The Father asks for unsupervised day visits. ACS and the Attorney for the Child oppose both motions.

During the pendency of an abuse or neglect proceeding, a respondent whose child is in the care and custody of the Commissioner, shall "have the right to reasonable and regularly scheduled visitation" (Family Ct Act § 1030[a]) with the child and shall "be granted reasonable and regularly scheduled visitation unless the court finds that the child's life or health would be endangered thereby" (Family Ct Act § 1030[c]; see Matter of Nyasia J., 41 AD3d 478, 479 (2d Dep't 2007]). The foster care agency in charge of supervising the child is required to provide "suitable arrangements for the parents to visit the child" (SSL § 384-b [7] [f]). "Suitable arrangements" pertain not only to the physical space for visits, but also the nature, duration, and quality of the visits (see e.g., Matter of Fish v. Fish, 112 AD3d 1161, 1162 [3d Dep't 2013]; see also In re Robert F, 195 AD2d 715 [3d Dep't 1993]). ACS's Policy Guidelines for Determining the Appropriate Level of Supervision for Family Visits ("Guidelines") require foster care agencies to implement unsupervised visits "unless visitation poses a risk to the physical and/or emotional safety of the child; there is reason to believe that the parent may attempt to interfere with, manipulate or coerce the child's potential testimony; or there is a court order requiring a higher level of supervision. The Guidelines also require that '[a]s soon as possible, visits should move from the agency into the community" and that "[p]arents with children in care should not remain in supervised visits when no safety issues require supervision."

Although ACS contends that the Mother's motion for unsupervised visits should be denied because she has not been compliant with her service plan — having missed some of her required random drug screening dates — Petitioner fails to mention that she is otherwise compliant with the requirements of the order of disposition and has tested negative for drugs both before and after the tests that she missed.[FN1] Similarly, although ACS and the Attorney for the Child each contend that the Father's motion for unsupervised visits should be denied because the Father has not been fully compliant with his service plan, they do not deny that he has completed his requirement to take a parenting skills class, and has been enrolled in drug treatment services at Realization Center since August 11, 2014, and has been testing negative for drugs since he enrolled. The fact that the parents have not been perfectly compliant with their service plan is not an impediment to the granting of the relief requested therein. The issue is a safety issue, not a compliance issue (see e.g. Matter of Phoenix D.A. (Jessie A.), 2014 NY Slip Op 08638 [ 2d Dep't Dec. 10, 2014]; Matter of Winstoniya D. (Tammi G.), 2014 NY Slip Op 08429 [2d Dep't Dec. 3, 2014]).

ACS and the Attorney for T. S. also contend that the motions should be denied because both parents have been adjudged to have permanently neglected T. S. As the child's goal is adoption by her current foster parents, ACS and the Attorney for T.S. seek to maintain the status quo until T. S. is freed for adoption. No case has been cited for the proposition that a finding of permanent neglect and a goal of adoption are legal impediments to changing the nature of a parent's visitation or increasing its frequency, and none has been found. A "goal" is not a certainty. Until the conclusion of disposition and the rendering of a decision, the outcome of [*3]this case remains uncertain. Given that such a decision will not occur for many months, requests for changes in the nature and kind of visitation are properly open for consideration.

The fact that the Mother allegedly engaged in an altercation in front of the child with another mother at the agency once in January 2014, and had a conversation with the child in which she told T. S. that she would be coming home,[FN2] are two other reasons ACS and the Attorney for the Child do not wish to expand visitation to unsupervised visitation. Neither, in and of themselves, constitute a sufficient basis to deny the relief requested. It is unlikely that the Mother will cross paths with the other woman on an unsupervised visit, and, if she does engage in violence, the visits will quickly be curtailed. The fact that the Mother spoke to T. S. about coming home is not legally objectionable. There is no law that states that everyone except the Mother is free to mention issues bordering on permanency with her child. Finally, the Court notes that neither the Attorney for the Child nor Petitioner has cited any similar impediments to unsupervised visitation by the father.

Given the admitted fact that T. S. likes and wants to visit with her parents,[FN3] the issue is solely one of safety. The Agency has offered no evidence that T. S.'s safety would be compromised if the Parents are permitted some limited unsupervised visits in the community. The only suggestion that unsupervised visitation time with the parents — even "sandwich visits"— would be contrary to T. S.'s welfare is found in the affidavit of Anne Hill, LMSW, who opines that "any change" in visitation would be "destabilizing and confusing" for T. S., and her "sense of security would be jeopardized by expanded visits." Ms. Hill's unsupported opinion is not a basis for denying the Parents' motions for unsupervised visits (see, e.g., Toure v. Avis Rent a Car Sys., 98 NY2d 345 [2002][expert opinion unsupported by an objective basis is wholly speculative and insufficient to support a litigant's claim]). However, the Agency must be afforded an opportunity to present evidence to support Ms. Hill's opinion. Counsel are ordered to cooperate with case coordinator, Valerie Turner, to schedule a date for such a hearing before February 27, 2015. The hearing will be limited to whether there is objective evidence to support Ms. Hill's assertion that unsupervised visits with her parents would be destabilizing and confusing for T. S. or would otherwise negatively impact her sense of security.

This constitutes the decision of this Court.

Dated: February 4, 2015___________________________________

Ann E. O'Shea, A.J.S.C.

Footnotes


Footnote 1: The Psychiatric Comprehensive Exam dated July 30, 2014, states that she has been abstinent since April, 2013.

Footnote 2:ACS places this conversation in August 2014 (see Affidavit of Natalie Matadin). The AFC places this conversation in December 2013 (see Affidavit of Anne Hill, ¶ 9).

Footnote 3:Neither the Agency nor the Attorney for the Child seems to have asked T. S. if she would like to spend some time with her parents outside of the Agency, which is an oversight that should be remedied.