In re a Permanency Hearing Concerning Angel P.

39 Misc. 3d 264
CourtNew York Family Court
DecidedJanuary 14, 2013
StatusPublished
Cited by2 cases

This text of 39 Misc. 3d 264 (In re a Permanency Hearing Concerning Angel P.) is published on Counsel Stack Legal Research, covering New York Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re a Permanency Hearing Concerning Angel P., 39 Misc. 3d 264 (N.Y. Super. Ct. 2013).

Opinion

OPINION OF THE COURT

Timothy J. Lawliss, J.

Angel, the subject child of this proceeding, is currently placed with the Commissioner of the Clinton County Department of Social Services pursuant to articles 10 and 10-A of the Family Court Act. At the last permanency hearing conducted on November 28, 2012, the court found that Angel’s father, Thomas P, had been diagnosed with alcohol dependence, cannabis dependence, opioid dependence and hallucinogen abuse and there were ongoing concerns regarding his abuse of marijuana, K2, alcohol and salvia. During the hearing Mr. E strongly asserted that he wanted to work for the return of his child and, in order to prove his future sobriety, Mr. E asked that a SCRAM device be installed on his person.1 The court granted Mr. P’s request and directed that the Clinton County Department of Social Services install a SCRAM device for Mr. E no later than December 3, 2012.

By order to show cause dated November 29, 2012, the Clinton County Department of Social Services moved for an order [266]*266In support of its motion, the Department submitted the affirmation of Attorney Van Crockett dated November 29, 2012 and the correspondence of Attorney Van Crockett dated January 4, 2013. Essentially the Department argues that it only possesses 20 SCRAM devices, that all 20 SCRAM devices are being used and that the court does not have the authority to order them to obtain a twenty-first SCRAM device for Mr. E’s use. Therefore, the Department argues that the requirement that the Department provide a SCRAM device for Mr. E should be delayed until one of their 20 SCRAM devices is available.

[265]*265“to modify the provision of the Permanency Hearing Order that directs that no later than December 3, 2012, the Clinton County Department of Social Services shall ensure that a SCRAM device has been installed and is utilized by Thomas [E] to provide that within 24 hours of its availability, the Department of Social Services shall ensure that the SCRAM device shall be installed and is utilized by Thomas [P].”

[266]*266Before analyzing the basis of the Department’s request, it is important to note that the Department does not dispute any of the following. Mr. E has a significant problem with alcohol. The SCRAM device is an effective method of monitoring Mr. E’s alcohol consumption. The Department is obligated to make reasonable efforts to return the child to her home. Fart of reasonable efforts should include services designed to address Mr. E’s alcohol consumption. Other than the argument discussed below, there is no impediment, financial or otherwise, to the Department obtaining an additional SCRAM device for Mr. E’s use.

It appears that the Department’s argument relies entirely upon Family Court Act § 1015-a, which in pertinent part indicates that a family court order directing a social services official to arrange for services “shall not include the provision of any service or assistance to the child and his or her family which is not authorized or required to be made available pursuant to the comprehensive annual services program plan then in effect.” Although not expressly stated, it also appears that the Department is asserting that the Clinton County Child and Family Services Flan in effect from January 1, 2012 through December 31, 2013 (hereinafter the plan) that is attached to their attorney’s affirmation is the “comprehensive annual services program plan” referenced in Family Court Act § 1015-a.

The plan is 83 pages long with approximately 24 pages of attachments. One section of the plan is titled “Child and Family Services Flan Frogram Narrative” and contains several subsections titled “Outcome Framework/Mission/Vision,” “Flanning Frocess,” “Self Assessment,” “Friority Frogram Areas,” “Outcomes,” “Strategies to Achieve Outcomes,” “Plan Monitoring,” and “Financial Process.” The introduction to the subsection titled “Strategies to Achieve Outcomes” reads as follows:

“Describe strategies that will be implemented to [267]*267achieve the identified outcomes, including those strategies that support your Child and Family Services PIP outcomes. Each strategy should include the timeframe for completion and a designation of what agency (ies) or department (s) is/are responsible for implementation. Explain how OCFSadministered funding supports achievement of outcomes. Strategies must be related to the achievement of outcomes. If the county receives RHYA state aid, the strategies must provide for the coordination of all available county resources for those populations.”

By this court’s count, the Department then lists 61 strategies. Contrary to the Department’s own introduction to this list of strategies, the court does not see any time frame for the completion of any of the identified strategies in this section of the plan. Based upon this court’s review, only four of the 61 strategies have any type of numerical limit to the amount of services to be provided. One of those four numerical limitations involves a “strategy” related to the SCRAM device, which reads as follows: “Maintain up to 20 SCRAM bracelets (purchased in 2009) for the expressed purpose of preventing out of home placement in Article 10 proceedings or facilitating return home from foster care for families in Article 10 proceedings in which parents’ alcohol use is a safety factor.” The Department relies upon this language to claim that the court lacks the authority to order the Department to provide a SCRAM device to Mr. E because the 20 SCRAM devices that they possess are all being utilized.2

Nowhere in the supporting affirmation nor in the plan does the Department state that they could not maintain more than 20 SCRAM bracelets, if they so desired. Nowhere in the supporting affirmation nor in the plan does the Department provide any reason as to why they are choosing to only maintain 20 SCRAM bracelets. Without any reason advanced, the court can only conclude that the number 20 is an arbitrary limit. There is no rational basis to deny Angel’s family the services available in this county to other similarly situated families.

Other family courts have held that the Family Court has the authority to direct that the Department of Social Services [268]*268provide a specific service, if the specific service at issue is consistent with the purposes of the county’s comprehensive annual service plan, even when the specific service was not expressly enumerated in the county’s comprehensive annual service plan. For example, in Matter of Daniel M. (166 Misc 2d 135 [Fam Ct, NY County 1995]), the court held that it had the authority to direct that the Department of Social Services provide for in-home nursing care for a disabled child so that the child’s prospective foster parents could accept the child into their home, even though payment for nursing care was not specifically mentioned in the county’s comprehensive annual service plan. The court found that the county’s plan listed as a priority “Recruit Foster Boarding Homes for Hard-to-Place Children, Including Those 10 Years of Age and Older and Those with Special Medical and Developmental Needs.” (Id. at 140 [emphasis omitted].) Finding that the providing of nursing care was consistent with that stated priority, the court ordered the nursing care over the objection of the Department of Social Services.

Similarly, in Matter of Andrea D.

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Bluebook (online)
39 Misc. 3d 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-permanency-hearing-concerning-angel-p-nyfamct-2013.