(Cite
as: 147 Misc.2d 761, 559 N.Y.S.2d 431)
Family
Court, Queens County, New York.
In
the Matter of OSCAR C., Jr.
[FN*] and Beverly C., Children Under the Age
of
Eighteen Years Alleged to be Abused/Neglected.
FN*
Names have been changed to protect the confidentiality of the parties.
May 9, 1990.
**432 *761
Rena Riback, Office of Legal Affairs, Dept. of Social Services, Jamaica,
for petitioner.
Oscar C., Astoria, pro
se.
Frank E. Land, Kew Gardens,
Legal Adviser to respondent.
Bertram E. Hirsch, Floral
Park, for intervenor (Native Village of Twin Hills, Alaska).
Emanuel Saidlower, Legal Aid Soc., Jamaica, Law Guardian.
DECISION AND ORDER
AMBROSIO, Judge:
This case, which raises
issues of first impression in this *762
state, involves a family with a long history in this court. In early 1986,
family offense petitions first brought the C family to the court's attention.
Thereafter, a child neglect proceeding was filed by the Department of
Social Services charging that the parents failed to provide adequate shelter
for the children, Beverly, age 3 and Oscar age 10 months. During the pendency
of that action, the Respondent-mother, Beverly C, left the jurisdiction
and returned to Alaska. She has never returned. A finding of neglect was
made against both parents and the children were placed.
On March 23, 1987, the
Court was made aware of an allegation that the child Beverly had been
sexually abused while in foster care. Despite extensive effort neither
the nature nor perpetrator of the abuse could be learned.
In October, 1987 the
Court returned the children to the care of their father under supervision
of the Child Welfare Agency.
On November 9, 1988,
CSS filed the current neglect petition against the respondent-father,
Mr. C, alleging that the children were residing in an apartment
which lacked heat, electricity, working bathroom facilities and stove.
Based on these allegations the children were removed from the home and
paroled to the care of a friend of the father, Mrs. Aguirre, who quickly
surrendered the children to the Commissioner of Social Services for placement
in foster care.
The fact-finding was
commenced on January 19, 1989. It was continued on February 3, 1989, when
an attorney appeared to represent the Indian Village of Twin Hills. The
C children are members of this Alaskan Indian Tribe and are, therefore
entitled to the protection of the Indian Child Welfare Act, 25 U.S.C.
§ 1901 et
seq. It is
the applicability of the ICWA to a child neglect proceeding which raises
issues of first impression in New York.
The fact-finding hearing
concluded on March 17, 1989. The Court made a finding of neglect due to
the father's failure to provide adequate shelter. The Court then ordered
an investigation and report on Mr. C's current circumstances as well as
a mental health study and adjourned the matter to June 23, 1989.
On April 28, 1989, an
Order to Show Cause requesting a termination of Mr. C's supervised visitation
was filed by CSS. The Commissioner alleged that Mr. C's visitation should
be *763
terminated because it so disrupted the children and their foster care
parents that the children had to be moved from one foster care parent
to another. In approximately four months after leaving Mrs. Aguirre,
the children went to St. Christopher-Ottilie, then to the Astor home,
then Lutheran Community Services and finally to Central Brooklyn Coordinating
Council. In each case the agency found Mr. C so trying that they refused
to continue to care for the children. After a hearing the Court terminated
Mr. C's visitation to allow the children to remain in a stable fostercare
environment without the threat of constant disruption which Mr. C's visits
had caused.
The dispositional hearing
in which Mr. C insisted in proceeding pro
se commenced
on September 13, 1989 and continued over thirteen additional days. The
Court heard **433
testimony from a number of witnesses including Dr. Charlotte, Slopak,
Ph.D., senior psychologist of the Court's Mental Health Clinic and Dr.
Arcaya, a psychologist retained by Mr. C.
The testimony of Dr.
Slopak, who interviewed Mr. C, Oscar C, Jr., Beverly C, Mary J, maternal
grandmother of the children, and Vivian J, maternal aunt of the children
took several days. Her recommendation was that Mr. C not be allowed to
have custody of the children. She diagnosed Mr. C as suffering from a
Paranoid Personality Disorder with Borderline Features (DSM III R 301.00).
According to Dr. Slopak Mr. C suffers from acute paranoia, believing that
there is a plot against him to prevent him from having custody of his
children. This belief was manifested, in part, by his demand that the
interview with the psychologist be tape recorded. The Court also notes
that on
several occasions Mr. C was searched upon entering the Courthouse and
tape recorders were removed from his person.
Dr. Slopak's diagnosis
of Mr. C's paranoid personality was concurred in by Dr. Arcaya, Mr. C's
psychologist. He also testified that Mr. C was overly suspicious, and
viewed the Court, his lawyers, CWA, the Steinway Mental Health Clinic,
and the foster care system as in some sort of conspiracy against him.
Mr. C has a low level of frustration and little patience, according to
Dr. Arcaya. He also perceives anyone who is associated with his case as
being his enemy. This condition was diagnosed by Dr. Arcaya as being a
chronic, lifelong disorder absent psychological intervention. He needs
therapy in order to learn how to deal with frustrations, develop coping
skills, and learn how to relate to others. Dr. *764
Arcaya's prognosis for Mr. C was fair to good and he opined that "given
the absence of external stress" he could care for his children.
In assessing the evidence
presented in this dispositional hearing the Court notes that the C children
are "Indian Children" as defined by 25 U.S.C. § 1903(4).
[FN1] Although the usual New York State evidentiary standard in dispositional
hearings in child neglect cases is a fair preponderance of the evidence
the ICWA supercedes this requirement and imposes a higher standard of
clear and convincing evidence upon the Court in this case. Thus, only
if there is clear and convincing evidence that continued custody of the
C children by
their father is likely to result in their serious emotional or physical
damage may the Court remove them from his care. 25 U.S.C. § 1912(e).
FN1.
The court was informed by affidavit of Deborah Tennyson, Executive Director,
Bristol Bay Native Association, dated September 4, 1987, that the C children
are members of the Twin Hills Tribe, and are thus entitled to the protection
of the ICWA.
Despite the fact that
Mr. C loves his children and they love him the Court finds by clear and
convincing evidence that they can not be safely returned to his care.
Although Mr. C appears to have rectified the dangerous and inadequate
housing problem which led to the children's most recent removal from his
care in November, 1988, his underlying mental disability is not so readily
remedied. The Court psychologist and Mr. C's privately retained psychologist
agreed that he suffers from a paranoid personality disorder. Over the
long history of this case in Family Court, every other psychotherapist
who has come in contact with Mr. C has reached a similar conclusion. While
Mr. C's therapist, Dr. Arcaya, believes that the children may be safely
returned to Mr. C, the Court's psychologist, Dr. Slopak, did not. The
Court believes that she is correct. Dr. Slopak had the opportunity to
interview the children and review the voluminous record in this Court.
Dr. Arcaya did not. He was unaware
of Mr. C's alcohol abuse history in Alaska. He did not know that Mr. C
had allowed his children to reside in a home without any utilities for
several months. At best Dr. Arcaya concluded that in the absence of external
stress Mr. C could care for his two young children. However, whose life
is free of external stress? More particularly, can a person who is suspicious
and tends to perceive conspiracies against him with a low level of frustration
and little patience **434
be expected to live a life free of external stress?
*765
Over the four year history of this Court's involvement with the C family
it has tried to work with Mr. C. After the first finding of child neglect
was made, the Court ultimately returned the children to Mr. C's care.
A year later this case was commenced and the children were again removed
from their parent. During the year in which the children lived with him
Mr. C was supposed to attend the Steinway Mental Health Clinic to deal
with his own mental disorder. Although Mr. C did attend sporadically he
insisted on bringing a tape recorder with him. While caring for his children
Mr. C became involved in a dispute with his landlady which resulted in
a complete termination of utilities to his home. Mr. C made no effort
to rectify these conditions despite being financially able to do so. Since
the children were removed from his care he alienated a series of foster
care agencies with the result that his children have been repeatedly moved
from one foster care home to another. Only the termination of visitation
by the Court has enabled the children
to acquire some stability in their life.
Mr. C has not only estranged
himself from the children's foster care agencies, even the children's
original care taker, a friend of Mr. C, eventually abandoned the children
after disagreements with their father. Mr. C's paranoia has been repeatedly
demonstrated to impact harmfully upon his children. His paranoid and obsessional
reaction to the child Beverly's sexual abuse impacts unfavorably upon
the child. Mr. C's insistence on referring to the abuse as a rape and
his constant dwelling upon the incident with the child despite the recommendations
of two child sexual abuse experts can only harm the child psychologically.
To return these children to his care would be to assure them of a disorganized
and chaotic life at the hands of a mentally impaired parent whose conspiratorial
view of the world embroils him in endless disputes which have in the past
and would continue in the future to endanger their psychological and physical
well being. The Court is disinclined to again expose the children to these
risks.
In the usual child neglect
case the Court is faced with a choice of returning the child to the parent
or placing the child with the Commissioner of Social Services in foster
care. In this case the ICWA establishes that a preference be given to
a member of the Indian child's extended family 25 U.S.C. § 1915(b).
This preference has been described as "the most important substantive
requirement imposed on the state courts" by the act. Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 1602, 104 L.Ed.2d 29*766
(1989). The maternal grandmother, Mary J, who is a native American, has
asked to serve as her grandchildren's foster parent. The Alaska Department
of Health and Social Services submitted an evaluation of her home at the
request of the New York City Department of Social Services. The report
was favorable. Mrs. J also travelled to New York in order to be evaluated
by the Court appointed psychologist, Dr. Slopak, who recommended that
the C children be placed in her care.
Mr. C objected to the
children being placed with Mrs. J. The guidelines for state courts (44
FR 67584) issued by the Bureau of Indian Affairs suggest that the request
of the biological parents is to be considered in determining whether there
is good cause for modifying the statutory preference. Here, one of the
biological parents asks that the children not be given to their Indian
grandmother. Mr. C objects to Mrs. J because he believes that she is too
elderly to care for his children and because he insists that other relatives
who reside in her home are alcohol abusers. Mrs. J is 62 years old and
resides with her husband and a young adult daughter who can assist her
in caring for the children. In addition, both the Alaska Department of
Health and Social Services and Dr. Slopak the court appointed psychologist,
found Mrs. J to be a suitable caretaker.
Mr. C also notes that
placing the children in Alaska would separate them from him
by thousands of miles and the statute ordinarily requires the children
be placed in **435
reasonable proximity to the child's home (25 U.S.C. § 1915(b)). Although
the children would be separated by many miles from Mr. C if the Court
authorizes placement with the maternal grandmother, they would be near
their mother who also resides in Alaska. Moreover, the purpose of proximity
is to reinforce the parental bond through visitation while the children
are in foster care. In this case visitation has been suspended because
of Mr. C's disruptive behavior. Because visitation can not be reinstated
until the respondent father undergoes successful psychiatric treatment
for his serious mental disorder the principal benefit of proximity is
absent in the case at bar. Although proximity to the parent is a mandate
of the ICWA that mandate is qualified by the statute's authorization for
the Court to take into account "any special needs of the child."
The special need of the C children is for a stable home life in the care
of a loving adult. Neither parent has been able to meet that need. Mrs.
C, an alcohol abuser, *767
abandoned them several years ago. Mr. C, who is mentally impaired and
has a history of alcoholism, has been unable to provide a safe and stable
home. Since Mrs. C left New York the children have spent most their young
lives in the care of strangers. It is time for that to end. The maternal
grandmother is a concerned and loving relative who can raise them in the
Indian culture into which they were born but from which they have been
estranged.
The Court places the children with the Commissioner of Social Services
for twelve months to reside with their grandmother pursuant to the ICWA.
The Commissioner is to make arrangements for the children to receive therapy
in Alaska.
The order permitting
transfer of the children to Alaska is stayed fourteen days from the date
of this order.
[Portions of opinion
omitted for purposes of publication.]
147 Misc.2d 761, 559
N.Y.S.2d 431
|