(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.

*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.



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