Published on:

#298 Third Department Caselaw Round-Up for February 2, 2012, Part 5 of 5

158 Post-1 02-02-12, Part 5 Third Department February.pngAnother Termination of Parental Rights appeal. Over time, I expect to post quite a few of these if only because they represent the extreme level of dysfunction that ultimately destroys a family. Having represented my fair share of clients who have gone through TPRs, these sorts of cases have a tendency to stick with you. I’ll often find myself thinking about these children, hoping that their futures are indeed brighter, now that they’ve been ripped away from their birth families and united with new families.

Unfortunately, in this line of work, there is never any “Where Are They Now?” follow-ups. You’re left forever wondering, will these kids make it? I certainly hope so.

158 Post-2 Tompkins County.pngCase #151 #510449
Matter of Jyashia RR., ___ A.D.3d ___, ___ N.Y.S.2d ___ Tompkins Family – Sherman Issues: Clear and Convincing Evidence; Domestic Violence; Foster Care; Neglect; Permanent Neglect; Psychological Evaluations; Termination of Parental Rights Cited statutes: SSL ยง384-b Affirmed

The mother has four (4) children by three (3) different fathers with the father of the youngest two children living with them. All four children were removed by DSS after a report of domestic violence in the household in front of all of the children, together with a report of a person discovering the two youngest children down the street, while the parents were home, but without supervision.

After the father consented to a finding of neglect, all four of the children were placed in foster care, where they remained for almost eighteen months. DSS thereafter filed a petition for permanent neglect of the children and terminated the father’s parental rights to the children after a hearing. The father appealed.

The crux of this decision was that the father simply failed to meaningfully cooperate with DSS over an extensive period of time. He failed to follow-up with mental health counseling. He failed to provide DSS with accurate phone numbers and addresses. He failed to timely find adequate housing for the children. He arrived late for and left early from visitation with his children. He made no efforts to contact the foster parents concerning the progress of his children in school.

Unfortunately for the father, a lot of his surly behavior seemed to evolve from his belief that his children had been wrongly removed by DSS. While that might very well have been so, he should not have allowed his anger and pride to get in the way of cooperating to get his children back. This mindset alone may have caused the father to act as he did, which ultimately resulted in his parental rights being terminated.

In a footnote, the Third Department makes clear that the mother’s parental rights to all four of her children had been terminated and the order was previously affirmed on appeal, in 2011.

There are important points made throughout this decision that should be made with every client that is the respondent in a TPR proceeding.

The first point to be made is the most obvious: DSS is watching every move you make, so you should always act as though you were being watched.

Second, if the court has ordered you to do something, then you had damned well better do it or have a damned good excuse for not doing it. Do not anger the judge!

Third, if your children are already in foster care, then you need to do everything in your power to try to get them out of foster care – and that necessarily means cooperating with DSS.

Fourth, do not merely do everything that has been asked of you; do more. One thing judges hate to see is the parent that does only what is required of them, as if it is somehow a form of punishment. Remember: your children’s futures are at stake! You should be willing to move heaven and earth to get them back! Go above and beyond in all that you do – and make sure that you document it!

Fifth (and this is amazingly obvious, but sooooooo many parents screw it up), make sure that you consistently go to all of your visits with your children. Make sure that you arrive early and stay for the duration. Never be late or leave early. Ask for more visits. Ask for visits of longer duration. Ask for unsupervised visits. Be interactive with your children. Verbally and physically express your affection for your children on each visit. Your children look forward to these visits – and you should, too!

Sixth, take advantage of all of the services that DSS is providing for you because 1) they are almost always free or deeply discounted and 2) they have been provided to you for a very good reason.

Caselaw Round-Up Score Card:

Affirmed: 102 (67.55%)
Decision Withheld: 6 (3.97%)
Dismissed: 10 (6.62%)
Modified: 11 (7.28%)
Reversed: 21 (13.91%)

Total: 151