In re Michael Anthony Vincent J.

253 A.D.2d 619, 677 N.Y.S.2d 347, 1998 N.Y. App. Div. LEXIS 9337

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 10, 1998
• Status: Published

Opinions

Orders, Family Court, Bronx County (Richard Ross, J.), entered February 8, 1996, which, after a fact-finding hearing, dismissed separate petitions seeking termination of respondents’ parental rights with respect to infants Michael Anthony Vincent J. and Rose Antionette J., reversed, on the law and the facts, without costs, the petition reinstated, findings of neglect entered, and the matter remanded for a dispositional hearing.

A review of the record as a whole demonstrates by clear and convincing evidence that the petitioner-appellant agency performed sufficiently “diligent efforts” to reunite the family as is required by Social Services Law § 384-b. Respondents permanently neglected their children despite the agency’s efforts on their behalf. Accordingly, we reverse the order of the Family Court dismissing the petitions against the respondents seeking the termination of the parental rights of respondents Lillian T. and Kevin Vincent J. and transferring custody and guardianship to the petitioner St. Christopher-Ottilie and the Commissioner of Social Services of the City of New York.

Rose Antoinette J. was born on September 27, 1986, at Queens, New York, and Michael Anthony Vincent J. was born on October 27, 1989, at Lincoln Hospital, Bronx, New York. Lillian T. is the birth mother of the children herein and Kevin Vincent J. is the father of the children.

The children were placed with the Commissioner of Social Services of the City of New York on April 20, 1989 and November 15, 1989, respectively, by the Bronx County Family Court, and the Commissioner of Social Services of the City of New York in turn placed the children with the Children’s Aid Society. Subsequently, the children were placed with St. Christopher-Ottilie on September 30, 1991.

The petitions alleged that respondents Lillian T. and Kevin Vincent J. failed to follow through on the diligent efforts made by the agency caseworkers to encourage and strengthen the parental relationship.

The testimony of the agency caseworker, Ms. Lafontaine, described her repeated attempts to involve both respondents in planning for the children, including keeping regular and consistent contact with both the children and the agency, following through with parenting .skills training, and psychological and psychiatric evaluations, and, in the case of the respondent father, undergoing a drug-abuse assessment. However, both respondents failed to keep adequate and consistent contact with the agency, and failed to maintain adequate contact with the children.

In the case of the respondent mother, she was often late for the scheduled visits, and failed and refused the caseworker’s referrals for the required services. Of the 38 visits scheduled with the children in 1992, the respondent Lillian T. did not appear for 16 visits, and on the 22 visits for which she did appear, the respondent was late 14 times.

Thus, respondent Lillian T. attended full sessions with the children in 1992 in only 8 of 38 scheduled visits. Many of the visits were described as “chaotic”. In one instance, respondent mother told the child Rose that she was behaving in an infantile manner, and then stated that she was going to take Rose into the bathroom and “beat her butt”.

With respect to respondent Kevin Vincent J., no relationship developed between him and the children because of his inconsistent visitation. In some instances, there were four or five month gaps where said respondent did not visit the children at all. In 1992, respondent attended only 8 out of the 38 scheduled visits. He often failed to keep the appointments and rescheduled appointments the caseworker arranged. The child Rose Antoinette J. was placed in foster care due, in part, to the alleged drug abuse of the respondent Kevin Vincent J. The missed referrals made by the caseworker for him also included substance-abuse evaluations, which were also required.

Family Court, while noting respondents’ failures with respect to cooperating with the agency’s plans and efforts, concluded that the agency failed to give appropriate consideration to respondents’ limitations and that respondents did all they could based upon their resources. However, the agency addressed the respective limitations of each respondent, and was repeatedly rebuffed. For example, with respect to Kevin Vincent J., the caseworker attempted to accommodate him by referring him to one program where he could receive all of the services required in one day. The caseworker also provided transportation in order to facilitate respondent in meeting his goals. Also, visits with the children were also arranged for the same day and door-to-door transportation was provided for both respondents in order to assist them in keeping appointments for referrals.

With respect to Lillian T., similar scheduling and travel accommodations were made, but, as noted above, her attendance and cooperation were uneven at best. The agency caseworker informed said respondent that, in addition to visitation, psychiatric and psychological evaluations, and parenting skills, she would also require a home attendant to help her care for the children when the children were returned home. However, the respondent refused the offer of a home attendant, stating that she did not need one.

Respondent Kevin Vincent J. testified and in many respects confirmed the caseworker’s account of his conduct. However, he stated he was never specifically told by Ms. Lafontaine what was expected of him. He stressed that they were homeless and were living in shelters and had attempted to cooperate and make visitation appointments.

While respondent Lillian T. did not testify, her social worker from Brookdale Hospital did. The hearing court apparently put great weight on this witness’s “opinion” that respondents did not have a good therapeutic relationship with the petitioner agency’s social worker. However, it is undisputed that respondent Lillian T., after briefly attending family therapy sessions at Brookdale Hospital, had her case closed in December 1991. She did not reappear until October 1992, shortly before the petition herein was initiated. Furthermore, the Brookdale therapist conceded that respondent was chronically late, did not cooperate with agency referrals, still needed to attend parenting classes and would have difficulty dealing with a hyperactive child. The witness admitted she was not qualified to test patients regarding possible mental retardation and that she had never worked with people who are mentally retarded.

Finally, testimony by respondents’ “expert” should not have been admitted. While this consultant may have been properly qualified as an expert, her opinions were admissible only with respect to issues that involved professional or scientific knowledge or skill not within the range of ordinary training or intelligence of the trier of fact (Dufel v Green, 84 NY2d 795, 798). The expert’s testimony criticizing the agency caseworker’s methodology and “grading” her performance addressed the dis-positive legal issue of whether diligent efforts were sufficient, which is solely the province of the court. This witness’s testimony was almost exclusively concerned with whether the agency’s plan for respondents was adequate, given their means and limitations. While expert testimony is not specifically precluded and the “expert” could have testified as to whether Lillian T. was mentally retarded or whether a specific program was appropriate, her general evaluation and “grading” of the agency’s efforts infringed upon the function of the court and certainly did not warrant a result favorable to respondent. Concur — Ellerin, J. P., Wallach, Williams and Mazzarelli, JJ.