Sylvia James has two children in foster care, aged 3 and 5. They have been in care for about 15 months. At first Ms. James worked hard at trying to deal with her drug problems. She visited the children regularly and her drug counselors said she was making progress. After the children had been in care about 6 months, Ms. James became involved with a new boyfriend. For the last 9 months there has been a steady slide backward. Ms. James was discharged from one program due to failure to attend and use of drugs. It took the caseworker two months to get Ms. James to enroll in a second program where her attendance has been spotty. The police have been called to the home two times for loud arguments and in the last month the caseworker observed Ms. James to have a black eye and bruises on her arm. Ms. James will not talk to the caseworker about these domestic questions. In the last two months Ms. James has failed to attend about half of the visits with the children. The children have been very upset about the missed visits although they are thriving in a foster home together. The foster parents are very committed to the children. The agency has just filed to terminate parental rights on the grounds of permanent neglect.
1. The defense attorney asks the agency and the law guardian if they will consider agreeing to a suspended judgment to give Ms. James a little more time. Can they do that? What factors should be considered?
2. The case goes to trial and the court does find permanent neglect and has scheduled a dispositional hearing. Due to the case load and court congestion , the case has taken 5 months. During that time, Ms. James has tried hard. She claims that she has ended her relationship. She has attended her drug treatment program with only a couple of missed appointments and the counselors are saying that she is making "slow but steady" progress. She has attended every visitation with the children who are thrilled to see her. The foster parents have continued to indicate that they would love to adopt the children. The defense attorney asks the agency and the law guardian if they will consider agreeing to a suspended judgment as Ms. James has done so well recently. Can they do that? What factors should be considered?
3. The defense attorney indicates that if there is no agreement to a suspended judgment then he will produce evidence at the dispositional hearing about how well Ms. James has done since the filing of the TPR. Can he do that? Can the Judge grant a suspended judgment even if the agency and the law guardian disagree? How does a suspended judgment work? How are services provided during such a time?
4. The parties agree to a suspended judgment and work out a 12 month order for Ms. James to continue to follow up on her drug treatment, to stay sober, to get some domestic violence counseling and to continue visits with the children. Two months later, Ms. James has stopped attending her drug program and has missed the last two visits with the children. What happens now? What are the options for the agency? If the case goes back to court, what are the legal options?
Margaret A. Burt
ATTORNEY AT LAW
63 CALLINGHAM ROAD PITTSFORD, NEW YORK 14534
TEL: (585) 385-4252 FAX: (585) 385-7717
11/07/2006