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Thursday, December 23, 2021

What is a permanency planning hearing? Written by New York ACS Defense Attorney

As a New York ACS Defense attorney at the Gilmer Law Firm, PLLC, based in Brooklyn, I have represented parents in all five boroughs in abuse or neglect proceedings for the past twenty years. My clients often ask me “what is a permanency planning hearing?” I tell them that the Family Court Act Article 10-A is the law that applies to permanency hearings for children that have been removed and not in their parent’s home. The point of the hearing is to ensure that children placed out of their homes have a timely review by the Court which promotes their safety and well being. The hearings are scheduled every six months. 

 

The Law

 

When a child is removed from the custody of a parent for alleged neglect or abuse, ACS is responsible for developing a permanency goal and a permanency report. A hearing will be scheduled. The report is supposed to be served on the parent and the parent’s ACS Defense Attorney 14 days before the hearing. 

 

The Family Court Act requires ACS to make reasonable efforts to eliminate the need of placement for the child so that the child can safely return home. The requirement that ACS makes reasonable efforts towards reunification is based upon the premise that a child is given the best opportunity to thrive when raised by their parent.

 

The reasonable efforts, according to New York law, are tailored to the facts and circumstances of the case. ACS must consult with the parent to develop an appropriate plan for services. Relevant to this inquiry is the extent of services needed and the availability of these services. If circumstances exists where the return of the child may be contrary to the health and safety of the child the Family Court may dispense with the requirement of reasonable efforts based upon the child’s best interests. 

 

One of the requirements of Reasonable Efforts shall include encouraging and facilitating visitation with the child by the parent. When the goal is return to parent, ACS must conduct weekly visits and follow up with the parent if visits do not occur to get the reason for missed visits and to make efforts to prevent similar problems with future visits. The Agency must  must document all follow-up efforts taken when scheduled visiting has not occurred.

 

What happens at a Permanency Planning hearing?

 

At the conclusion of each hearing the Family Court Judge will make a determination of whether the permanency goal should be approved or modified.

The purpose of a permanency planning hearing is like an audit. It is to ensure that the agency is meeting its obligations under the law and to review a parent’s compliance with the service plan recommended by the agency. If a fact finding has occurred, and a parent has been found guilty of abuse or neglect, the Court may Order in it’s disposition certain services for the parent to take, these services will be included in the permanency report and a review of whether the parent has engaged in Court Ordered services will be done.

 

Pursuant to the law the Judge may determine that the goal be (A) return to parent; (B) placement for adoption with the local social services official filing a petition for termination of parental rights; (C) referral for legal guardianship; (D) permanent placement with a fit and willing relative; or (E) placement in another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource for the child” (Family Ct Act § 1089[d][2] [i] ). 

 

At this hearing the Agency has the burden of showing that the goal they want is appropriate by the preponderance of evidence. The Family Court’s determinations after the hearing “must be made in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent.”

 

The overarching concern of these proceedings is the return of the child to the parent where possible. This is why at the beginning of a neglect case when a child is removed the goal is always return to parent. The Agency must make reasonable efforts under these circumstances to return the parent to the child. If the agency does not do so the Judge can make a finding that the agency did not meet its obligation of reasonable efforts by the preponderance of the evidence. The Court will not change the goal of return to parent if ACS has not made reasonable efforts to return the child to the parent.

 

What is taken into consideration of whether the goal of return to parent will be approved?

 

The Family Court this has the authority in neglect proceedings to approve or modify a proposed permanency goal. McKinney's Family Court Act § 1089(d)(2)(i).

 

In addition to reasonable effort by the agency,  the parent’s ability to recognize the need for help and cooperate with indicated services is taken into account to determine if the goal of return to parent will be approved. Reunification to the parent remains the goal so long as the parent is willing to correct the problems that led to the removal in the first place.  A long term stay in foster care is not in the child’s best interests, and if the parent is unwilling to correct that conditions leading to placement the Court will look for a more permanent and stable solution for the child.

Even if the parent needs ongoing assistance from the agency or providers to regain custody this is not a reason to change the goal of return to parent. 

 

In a proceeding to extend foster care placement, meaning wether to keep the child in foster care, the Agency must prove by the preponderance of evidence a parent’s continued inability to take care of the child and thus continued placement would be in the child’s best interests. 

 

Changing the Goal

 

The goal a parent has in a case is very important because it dictates the efforts an agency needs to make in reuniting the parent with their child.

 

At a permanency hearing where the Agency is seeking a goal change,  the Agency has the burden of proving the appropriateness of the goal change by the preponderance of the evidence. The appropriateness of change will be based upon the best interests of the child.   I can’t understate the importance of maintaining the goal of return to parent.  A change of a goal, say to adoption, will mean that the agency does not to be as diligent in facilitating the return of child to you although they still have to cooperate you and facilitate contact with the child up until the parent’s rights are terminated. Their efforts will be focused on getting the child cleared for adoption.  A goal change of adoption can lead to the Termination of a Parent’s rights.

 

According to Family Ct Act § 1089(d), there needs to be proof at the hearing of  “age-appropriate consultation with the child” in the event there is a request to change the goal.  This consultation is for the purpose of ascertaining the child’s wishes.

 

Why would a Court change a parent’s goal?

 

In a situation where a parent refuses to address the condition leading to placement and shows a lack of insight into these conditions the Court may change the goal. Furthermore where a parent fails to do services and use resources made available to him or her by the agency, disregard the advice of the agency and fail to maintain contact with the agency, the Family Court may find that the parent has not properly planned for the child, a legal requirement. The failure to plan can lead to a change in goal. In considering a goal change, as stated above, the Court will look at the parent’s awareness of why the children were placed in foster care. Furthermore, the failure of a parent to repeatedly allow a home inspection, to sign releases for information, to comply with mental health or substance abuse services and anger management or parenting classes if needed,  to not undergo a Court Ordered Mental Health Evaluation or any other Court Ordered services, can lead to a change in the goal. The length of time a child has been away from the parent is an important factor. Finally, the parent’s lack of progress or inability to progress with the services provided can lead to a goal change.

 

What happens at a Permanency Planning hearing? 

 

At a permanency hearing it is up to your ACS Defense Attorney to present evidence of your compliance with the service plan or state reasons for your non-compliance.  At the Gilmer Law Firm, PLLC I have done multiple permanency hearings. ACS will go first and present their case.  They will introduce the permanency report into evidence and maybe other reports and possibly have a caseworker testify about their reasonable efforts to unify you with your child and your response to these efforts. You will have the opportunity to testify about your progress. You will be able to submit evidence regarding your progress, like letters from service providers and certificates from courses you may have taken.  If ACS has provided you very little help in obtaining services or hasn’t been in contact with you, this evidence needs to be submitted at the hearing to prove that there were not reasonable efforts to reunify you with your child. It is wise that you document all contacts with ACS by text or email so there are no misunderstandings. If ACS hasn’t provided a service needed, it is in your best interest to be persistent with you caseworker about the implementation of that service. If you are not getting visits with your child you need to be persistent about arranging a visit.  If you testify, ACS and the child’s lawyer may ask you questions. Your lawyer will cross examine the ACS caseworker.

 

There is no law against obtaining your own service providers as well. My clients feel more comfortable doing this and I believe it empowers them in the process. If ACS doesn’t make the necessary referrals I would advise you to do it yourself or use the help of your ACS Defense Attorney to find proper referrals. You need to make sure the service providers you pick are in accordance with what ACS has recommended or the Court has Ordered. In the case of obtaining your own mental health evaluation, you need to provide your provider with the copy of the Petition. 

 

What if ACS is not giving me visits with my child?

 

Without an extremely good reason for denying visits the court may find that the agency has not made reasonable efforts to reunify you with your child because you aren’t getting visits. The agency needs to show that visits would be harmful to the child in order to deny them.

 

 

What if I don’t want to take the services?

 

If you feel the services ordered for you to take or the recommended by ACS are unreasonable, your ACS Defense attorney can make arguments about why you don’t need the service or need a different service. If the services are Court ordered your attorney will need to file a motion pursuant to Family Court Act § 1061 which provides that “[f]or good cause shown and after due notice,” the court may “set aside, modify or vacate any order issued in the course of a [child protective] proceeding.”  

 

As a New York ACS Defense attorney I can understand why parents may not want to take services because they feel they are not guilty and that they are being unfairly accused by ACS. It is possible that you have not been found guilty of neglect by the time your permanency hearing takes place because you have not yet had a fact finding. Before the fact finding’s decision, ACS will make suggestions about what you should do. It most likely these recommendations will not yet be Court Ordered which means you don’t necessarily have to do it. If you lose a fact finding the Judge may order services in the Disposition.  

 

The voluntary nature of services pre fact finding puts a parent in a dilemma because they feel that by taking the service they feel they are admitting to being guilty and that they are being inconvenienced by the recommendations.   What I tell parents is that we may have some say in what the agency recommends thus it may be beneficial to negotiate services you feel more comfortable with if it means getting your child back or visiting your child unsupervised sooner. If in my Judgment I feel the recommended services are unreasonable because they go far beyond in dealing with the allegations in the Article 10 Petition against you and if your refusal to take the services results in you not being able to see your child unsupervised or are causing a delay in the child being returned to you, I may file a motion to get the Judge to decide if you need to take the recommended services prior to having unsupervised contact. 

 

It is important to remember that you doing services is not an admission of guilt. The ends may justify the means because it may mean that your child will come back home to you sooner during the pendency of the case or that the Court may expand visitation for you from say supervised to unsupervised visits. If you complete services and ACS still refuses to allow the child to come home or expand visitation, your ACS Defense Attorney can file a motion to either have the child released to you via what is called a 1028 hearing or a motion to expand visitation. 

 

The permanency planning hearing is a very important aspect of an abuse or neglect proceeding because it gives a parent an idea of how far away they are from being reunited with their child.  It also can determine whether ACS has to use reasonable efforts to reunify the child with you.  If ACS is relieved of this obligation by a change of the goal from return to parent to adoption to use reasonable efforts towards unification, then this puts a parent at a great disadvantage in getting their child back.  Having a child returned after a goal change is not impossible but will require a significant amount of work by the parent to remedy the reasons while the goal changes in the first place and must be in the best interests of the child. The Social Services agency may file a petition to terminate parental rights if there is a goal change to adoption. It is thus important that you hire an experienced ACS Defense Attorney to represent you in an abuse or neglect matter.

 

I hope this article was informative.  If you have any further questions about permanency planning g hearings, call me at the Gilmer Law Firm, PLLC at 718-864-2011 for a free consultation.


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