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In re Nicholas M.

Other Lower Courts

August 17, 2001

In the Matter of Nicholas M., a Person Alleged to be a Juvenile Delinquent, Respondent.

Page 319

COUNSEL

Richard E. Davidson for petitioner.

Ronald L. Van Norstrand, Law Guardian. Gerald Serlin for parents.

OPINION

Michael L. Hanuszczak, J.

On November 14, 2000, respondent, a hearing-impaired child, was deemed placed in foster care within the meaning of Family Court Act § 355.5, and placed in the custody of the New York State Office of Children and Family Services (hereinafter OCFS) following a finding that the respondent had committed an act which if committed by an adult would constitute the crime of endangering the welfare of a child. The order of placement was entered for an initial term of one year expiring July 20, 2001, with credit for time spent in detention, pursuant to section 353.3 of the Family Court Act. On April 23, 2001, the petitioner timely filed a petition for a 12-month extension of placement, pursuant to Family Court Act § 355.3. Respondent's Law Guardian opposes the extension of placement and seeks a modification of said placement on the grounds that the OCFS placement is not the least restrictive and fails to provide the respondent with the services he needs. The petition was initially heard on May 16, 2001, at which time a pretrial conference was scheduled for May 31, 2001. Since the parties were unable to reach agreement at the pretrial conference, a hearing date was scheduled. On July 5, 2001, the hearing as to the extension of the respondent's placement commenced, but could not be completed that day. Pursuant to section 355.3 (5) of the Family Court Act,

Page 320

placement was temporarily extended for 30 days. At the hearing, testimony was heard from Dr. Galina Ostromogolsky, OCFS psychologist, for the petitioner. For the respondent, testimony was heard from John Gaehring, clinical mentor at Hillside Children's Center, Rochester, New York, and from Dr. Judith Grimes, a psychologist affiliated with Psychological Health Care, a private provider, who is also an independent provider of psychological evaluations. The court called the respondent's parents to testify.

The hearing was continued on July 6th and was completed on August 2, 2001. At the completion of the hearing on August 2, 2001, respondent's placement was extended an additional 15 days, pursuant to Family Court Act § 355.3 (5), in order to ensure continued placement while this decision and order was pending.

The issues raised by this petition to extend placement, and by respondent's opposition thereto, are threefold. First, whether the respondent's placement with OCFS is the least restrictive placement when the best interests of the respondent are balanced with the need to protect the community. Secondly, whether OCFS has violated the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.) by allegedly denying the respondent, a hearing-impaired individual, the benefits of sexual offender treatment accorded hearing individuals. And lastly, has OCFS failed, as alleged by the respondent, to provide the respondent with special education services he allegedly needs.

The petitioner, OCFS, in support of its motion to extend placement, asserts that respondent's need for sexual offender treatment, which led to his initial placement at OCFS's Oatka Residential Center, is a continuing one, and that the facility is providing the respondent with treatment specific to that need. It is the position of the OCFS that the respondent is in need of at least seven to nine more months of said treatment in order to complete sexual offender treatment goals and objectives. OCFS further maintains that sufficient interpreter services are in place to accommodate the respondent's special needs as he proceeds through this program. OCFS also advocates the continuation of placement with the agency, arguing that a less restrictive placement will pose a threat to the safety of the community.

Respondent argues that OCFS placement is not the least restrictive placement available. Secondly, respondent's counsel asserts that continuation of respondent's placement with OCFS violates the Americans With Disabilities Act, as OCFS is

Page 321

" incapable of providing an appropriate, effective treatment program given [respondent's] disability." (Respondent's letter mem at 2.) Lastly, the respondent claims that OCFS has failed to provide the special education services that were previously provided to the respondent by his former public school district, which are delineated in his individualized education program, a copy of which was provided to OCFS.

Least Restrictive Placement

In determining whether a placement is the " least restrictive" available option, the court must examine whether the placement balances the needs and best interests of the respondent with the need to protect the community. (Matter of Sabrina S., 256 A.D.2d 914 [3d Dept. 1998].) In this instance, the court disagrees with the respondent's position that placement with OCFS is not the least restrictive alternative for placement. On November 14, 2000, this court determined, after balancing the needs and the best interests of the respondent as well as the need for protection of the community, that the least restrictive placement for this respondent was with the New York State Office of Children and Family Services, pursuant to Family Court Act § 352.2 (1), (2) (a). The respondent has offered no factual evidence here to suggest that there has been a change in circumstances that previously led this court to hold that Nicholas, an adjudicated juvenile delinquent, is in need of the type of treatment and placement offered by the Office of Children and Family Services. In contrast, evidence to support the necessity of respondent's completion of the OCFS sex offender treatment program was presented at the hearing by petitioner, and this evidence supports this court's finding that the respondent continues to be a risk to the community.

Currently, the respondent participates in a sexual offender treatment program that includes a behavior component in the respondent's unit as well as a cognitive group that meets twice a week, which includes additional individual meetings with his psychologist to facilitate participation. An interpreter is provided in all treatment groups, as well as in individual counseling meetings. Every effort is made to insure that the same interpreter is available most of the time. In addition, the respondent has been under the care of a psychiatrist with whom he meets once every four to five weeks.

Petitioner's exhibit No. 4, offered and received into evidence at the hearing, is a report prepared by Peter Leising, a psychiatric social worker, associated with the Children's Psychiatric Center ...


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