Opinion
xx-11.
Decided March 3, 2011.
Pearline Guillaume, Esq., Special Assistant Corporation Counsel, New York City Children's Services, Brooklyn, New York.
Christine Theodore, Esq., Attorney for respondent mother 540 Ocean Ave (Suite G-1), Brooklyn, New York.
Michele Noah, Esq., Attorney for the Children, Legal Aid Society, Juvenile Rights Project, Brooklyn, New York.
The question presented in this three-year-old child protective proceeding is whether the aid of the court is still required. Respondent mother has moved to dismiss the petitions pursuant to Family Court Act § 1051 (c). The Attorney for the Children strongly supports respondent's motion, which is opposed by New York City Children's Services (hereinafter, "NYCCS").
Respondent mother, a public school teacher, has admitted that she inflicted excessive corporal punishment upon her now 16-year-old son, Robert. Robert and his sister were returned home, without further incident, and respondent completed all recommended services approximately two-and-one-half years ago. Respondent and her son continue to attend family and individual therapy voluntarily. The order of protection was vacated nine months ago. For the reasons set forth herein, the motion is granted and the petitions are dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Francine H. (hereinafter "respondent" or "the mother") is the mother of the two subject children, Robert W., born April 30, 1994 and Patricia H., born March 28, 2001. Respondent also has an older daughter, Valerie H. Valerie, currently a third year student at Princeton University, visits the home on some weekends and during school vacations.
On February 14, 2008, respondent was arrested and NYCCS removed Robert and Patricia from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. On February 15 2008, NYCCS filed petitions against respondent in Kings County Family Court.
The petitions allege that the mother neglected the child, Robert, by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, on February 14, 2008, NYPD responded to a 911 call made from a business near the case address after Robert left the home because his mother beat him with a belt. The petitions further allege that Robert reported that the beating took place after his mother learned that he had failed a number of classes. When Robert tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again. Robert also reported that his mother had used physical discipline in the past although this time was worse than other times. Finally, the petitions allege that Patricia is a derivatively neglected child by virtue of the neglect of Robert.
On the day the petitions were filed, Hon. Bryanne Hamill granted the request of NYCCS for a removal of the children and temporarily released them to Lola H., their maternal aunt. Judge Hamill entered a temporary order of protection against respondent on behalf of the children directing that she refrain from the use of corporal punishment. Judge Hamill also ordered that the mother have liberal supervised visitation at the aunt's home.
On February 16, 2008, two days after the incident, the mother enrolled in a number of programs offered by Family Dynamics. She immediately started a 16 week parenting support program and thereafter attended every Saturday from 11:00 AM to 1:00 PM. She never missed a session. She also started a 12 week anger management program which she attended every Saturday from 2 PM to 5 PM. She never missed a session. She started individual counseling and later found her son a therapist as well. She visited the children every day. She did their laundry, made them lunch and had two meals each day with them whenever possible. She checked their homework and was present for all of their doctors' appointments.
On April 17, 2008, Judge Hamill granted the mother unsupervised visitation with both children on the consent of NYCCS and the Attorney for the Children. On April 25, 2008, with the consent of all parties, the court changed the children's status from a temporary release to the maternal aunt to a restrictive remand with the children to reside with Michelle Stark, a family friend of six years. The maternal aunt had indicated that she was having difficulty transporting the children back and forth from her home in Manhattan to Brooklyn where they attended school and extra-curricular activities. Ms. Stark was a den mother for Robert's Boy Scout troop and lived close to the children's school in Brooklyn. She had a separate bedroom in her home for each of the children and agreed to transport them to and from school and their other activities.
On July 28, 2008, the case was transferred to this Part and, on the consent of NYCCS and the Attorney for the Children, the children were temporarily released to the mother under NYCCS supervision. The following month, she completed the parenting support and anger management programs.
The Fact-Finding Hearing
The fact-finding hearing commenced on October 27, 2008 and continued over the course of 28 months on numerous court dates. During the hearing, NYCCS called Officer David Jimenez from the 88th precinct and caseworker, Rosa Salgado. Respondent testified on her own behalf. The Attorney for the Children called Samuel C. Jones, D.S.W., L.C.S.W, the therapist who was providing family and individual therapy for respondent and Robert and, on January 4, 2010, the Court met with each of the children individually in camera with their attorney.
On June 21, 2010, the court declined to continue the temporary order of protection that Judge Hamill had entered against the mother prohibiting the use of corporal punishment. The Court had determined that an order of protection was no longer necessary to ensure the safety of the children.
Petitioner's Case
Officer Jimenez testified that he met Robert on February 14, 2008, after responding to a radio call. He testified that he observed him shortly after the beating took place. He said that he observed swelling and bruising on his arms, face and back. The officer accompanied Robert back to the family's apartment and observed a chair in the middle of the living room as well as the belts Robert said that his mother had used.
Ms. Salgado testified that she interviewed Robert on February 15, 2008. He told her that he had been hit by his mother with a belt on the chest, back and face. She testified that she observed linear marks and scratches on Robert's back, arms and neck, as well as a bump on his forehead. Ms. Salgado testified that Robert said that he had tried to get away from his mother but that she grabbed him, threw him on the floor, tied his arms to a chair and hit him again. According to Ms. Salgado, Robert said that when his mother ultimately left the room, he ran out of the apartment without a shirt or coat. An individual from a neighborhood gas station called the police.
Ms. Salgado also interviewed Patricia. Ms. Salgado testified that Patricia said that she had overheard her brother being hit but that she had been in a different room. She reported that she was "really upset" by what happened and that there had been similar incidents in the past. She said, however, that her mother had never hit her.
NYCCS also introduced two oral report transmittals (hereinafter, "ORTs") into evidence both dated February 14, 2008 (petitioner's exhibits "1" and "2" in evidence).
Respondent's Motion to Dismiss Pursuant to Family Court Act § 1051 (c)
During the fact-finding hearing, respondent moved by notice of motion dated April 18, 2009, to dismiss the petition pursuant to Family Court Act § 1051 (c). In support of the motion, respondent asserted that she had found the necessary services on her own, that she had completed them in 2008 and that she and Robert continued attending therapy voluntarily. She further asserted that she had a warm and loving relationship with the children, that she had benefited from the services provided and that the issues leading to the underlying incident had been or were being addressed.
The mother also emphasized that she had been the sole custodial parent for the children since they were born and that she was their only means of support. She asserted that she had provided for all of their needs, including health insurance, which had enabled her and Robert to attend and remain in therapy. She asserted that she had been informed by her union that she would probably lose her job if a finding of neglect were entered against her. She stated that if she lost her job it would have far-reaching consequences for the entire family. At a minimum, they would lose their only means of financial support and their health insurance. Finally, she asserted that the children had been home for an extended period of time without further incident and that the petition should, therefore, be dismissed since the aid of the court was no longer required.
On May 7, 2009, the Attorney for the Children submitted an affirmation in support of the mother's motion. The Attorney for the Children emphasized that the mother had completed the necessary services and that the family had remained in therapy voluntarily. According to the Attorney for the Children, Robert said that his mother had changed since the incident. He said that she now controlled her anger and handled situations calmly even when he misbehaved. According to the Attorney for the Children, Robert stated that he and his mother had "a warm and loving relationship." The Attorney for the Children also asserted that Patricia had repeatedly stated that she had never been subjected to corporal punishment and that she was flourishing in her mother's care. The Attorney for the Children stated that the "family functions well as a result of the services they participated in."
Finally, the Attorney for the Children disagreed with the assertion, made by more than one attorney for NYCCS, that the mother "should lose her job." The Attorney for the Children emphasized that the mother was the sole means of support for the children and that a finding of neglect might place her job in jeopardy although there was "no demonstrated continued need for supervision and no continued reason to believe they are exposed to risk." The Attorney for the Children asserted that there was no basis for the claim that the mother "has ever posed a risk to her students and these two children should not be punished because of this sort of conjecture."
Although NYCCS submitted no papers in support of or opposition to the motion, they argued that continued supervision and services were needed for the family and that the motion should therefore be denied. Although they failed to explain what specific services were needed, they asserted that the seriousness of the underlying incident established that continued supervision was necessary. In addition, NYCCS again asserted that they believed that the mother "should lose her job." The Court reserved decision on the motion pending conclusion of the Family Court Act § 1051 (c) hearing which it consolidated with the remainder of the fact-finding hearing.
Respondent's Case
The mother testified on her own behalf. She testified that she, the children and a maternal aunt, Karen H., a flight attendant, had resided at 222 Willoughby Street, since August 2001. The mother testified that she was the children's sole means of support. She testified that she had worked as a teacher for approximately 20 years and had been at her current job, at I.S. — 123 in Brooklyn, for approximately seven years. She testified that she taught math and science. Before that, she taught history and language arts. She taught five classes involving approximately 180 students. She also taught at I.S. — 123's after-school program two days each week. In addition, three days each week she taught at another after-school program at the Brown Memorial Baptist Church. In addition, she attended Brooklyn College where she was working on her second Master's Degree in science. She was scheduled to complete that program in June 2011. She was also a Scout Master and participated with her children in both Boy Scouts and Girl Scouts.
Prior to I.S. — 123, the mother worked at Project Return from 1993 until 2000. Project Return is a drug rehabilitation program for mothers and children in East Harlem. The mother ran a therapeutic nursery school for children from birth to three years of age. Before that, she taught at I.S. — 12 from 1989 until 1992.
The mother submitted a letter from Mr. Robinson, who was her immediate supervisor and the principal of her school, dated October 23, 2009 (see respondent's exhibit No. 1 in evidence). He described the mother in the following terms:
(An) intelligent, supportive and dedicated teacher who has always assisted the children in her charge. She has taught science to 6th grade students during her tenure within our school community Robert was also a student at I.S. 333 from 2006 — 2008. During that time, I have been witness to various interactions between mother and son. Ms. H. has always (been) supportive to her son and his endeavors. Robert was a good academic student, an athlete, he played on our school basketball team, and he was a part of our school orchestra (percussion). In the time that I have known Ms. H., she has always given of her time in an unselfish manner. If a problem persisted until the end of the school day Ms. H. made sure the problem was resolved prior to her departure from the building. Ms. H. is an intelligent, caring and dedicated professional employee.
The mother also submitted letters documenting her completion of the anger management program and the parenting support workshop (see respondent's exhibit # 2 and # 3, in evidence respectively). She also submitted a letter dated June 3, 2009 from Samuel C. Jones, D.S.W., L.C.S.W, the therapist who was providing family and individual therapy for her and Robert (see respondent's exhibit # 4 in evidence). In the letter, Dr. Jones stated that she and Robert were compliant with their treatment plan, that Robert's sessions were twice each month and that family sessions were once each month.
Family Court Act § 1046 (c) provides that only material and competent evidence is admissible during proceedings under article 10 of the Family Court Act, except for fact-finding proceedings. Accordingly, these letters were not admitted for purpose of the fact-finding proceeding. They were admitted for the purposes of the Family Court Act § 1051 (c) hearing for the limited purpose of showing whether or not the aid of the court is still required.
The mother admitted that she inflicted excessive corporal punishment upon her son. She admitted that she beat him with a belt. She testified that she did it when she was angry. She said that she "blew up" and was "out of control." She admitted that during the incident Robert did not have a shirt on. She acknowledged that when Robert tried to get away, she grabbed him and they fell to the floor. She testified that she then brought him back to the chair in the living room and hit him again. However, she denied that she ever tied her son to the chair.
She admitted that she had used corporal punishment with Robert in the past. She said that there were approximately five prior incidents and that four involved the use of a belt. She testified that the instances took place after she learned that Robert had lied, stolen or committed other acts of a similarly serious nature.
Although she never attempted to justify her actions, she did testify about the events that took place on and immediately before February 14, 2008. She testified that Robert's behavior had begun to change dramatically. She testified that he had once been an excellent student but that his grades had recently dropped dramatically. In addition, she testified that she had just received a $1,000 Time Warner bill for Robert's use of pay-per-view pornography. She testified that she had received a similar bill once before and that Robert had promised that it would never happen again. She testified that she then received notification that he had failed four subjects: algebra, science, global studies and Spanish. She immediately realized that his grades would result in him losing the conditional acceptance and scholarships he had received from Xaverian Catholic High, Bishop Ford Central Catholic High and Brooklyn Friends School. She said that she tried to talk to Robert about his actions and that he just ignored her and walked away.
The mother testified that after the incident she realized the seriousness of what she had done and that she needed help. As a result, she spoke with a parent she knew through Robert's Rites of Passage Program. They referred her to Family Dynamics where she immediately enrolled in a 16 week parenting support program and a 12 week anger management program. The mother testified that she had found the programs on her own because she wanted to get started as soon as possible in order to be reunited with the children. By the time of her first meeting with NYCCS on February 18, 2008, the mother was already in compliance with the service plan that they subsequently developed.
The mother testified that immediately after the incident she found a psychologist through her insurance company and started individual therapy. After the children were returned to her care, she realized that she and Robert needed additional help. Consequently, in September 2008, although it was not part of her service plan, she found another therapist through her insurance company to provide individual therapy for Robert and family therapy for both of them. She testified that she found those services on her own without the assistance of the agency.
The mother testified that she completed all of the required services in 2008. She also testified that she and Robert continued to attend individual and family therapy although it was not required by court order or NYCCS. She testified that, irrespective of the outcome of the proceeding, she and Robert would remain in therapy for as long as necessary.
In 2009, NYCCS acknowledged that the mother had completed the recommended services. Nevertheless, they asserted that the aid of the court was still required. In support of that argument, NYCCS orally requested an order directing that the mother and Robert remain in family therapy. This request was made even though the family had been voluntarily engaged in therapy for months and the mother had indicated that they would voluntarily remain in therapy until it was no longer necessary.
She described the therapy schedule indicating that on alternate weeks Robert saw Dr. Jones for individual therapy for approximately 50 minutes. As needed, she and Robert then met with Dr. Jones together for family therapy. Whenever she or Dr. Jones believed it was necessary, she also met with Dr. Jones individually. She testified that she also maintained a strong support system through her family, her church and her 12-step meetings.
The mother expressed great remorse for her actions and described what she had learned through her various services since the commencement of the proceeding. She said that she realized that she had always maintained unreasonably high expectations of herself and her children. She said that she also realized that she was not doing what she needed to do to deal with problems in her own life. She said, "I was just working, working, working, working and not giving myself an opportunity to deal with my own stress, my own disappointment or even talking about what was happening."
She testified that she had learned a great deal about different ways to deal with her feelings of disappointment and frustration with Robert's behavior. She said that this involved maintaining better lines of communication with him, as well as more reasonable expectations for both of them. She said it also involved getting support from her family and her church, as well as help in family therapy. She testified that she was learning not to react in moments of anger, stress or disappointment. Instead, she said she gave herself and Robert periods of "time out," until the feelings subsided. She said that then she was able to talk to him about what happened without "blowing up."
She testified that she had also learned a great deal about her son's addiction to pornography and was working on ways to help him deal with it. For example, she testified that she had turned off the cable television and internet service into the family's home for a period of time. She also limited Robert's telephone access. Despite these efforts, she subsequently discovered that Robert was using her cell phone in the middle of the night to call "900 numbers" and party lines and to engage in three-way texting. Ultimately, she decided to disconnect the cable and internet service into the home altogether as she grew to understand more about Robert's "triggers."
She also testified that she had been able to respond to these situations very differently. She said that her communication with her son had greatly improved and that these were issues that they were discussing on an ongoing basis. The family therapist, the Attorney for the Children and both of the children confirmed that the mother was able to respond to this and other problems and conflicts by talking about them, rather than resorting to corporal punishment.
The Attorney for the Children's Case
During the Court's in camera interview, Robert reported that he and his mother continued to attend family therapy on a regular basis. He reported that his mother now speaks to him when he does something wrong. He said that prior to February 14, 2008, they were not communicating. He said although he has continued to do "not that well in school," he and his mother are able to discuss it. He said that she is able to tell him about her disappointment especially because she thinks he has the ability to do so much better.
During the Court's interview, Robert described the events of February 14, 2008. Robert reported that his mother learned that he had failed a number of classes and that this occurred after she had received the Time Warner bill. He said that she beat him with a belt. During the incident he did not have a shirt on. He cried and asked his mother to stop. When Robert tried to get away, his mother grabbed him, they fell to the floor and she hit him again. He denied that his mother had tied him to the chair and he denied that he ever said that she had.
Robert said that his mother had used physical discipline in the past. He said it happened approximately six or seven times. He said that the prior incidents occurred when he did something "really bad" like getting into a fight at school or getting in trouble with the school principle. He said that the last time his mother used corporal punishment was on February 14, 2008.
Both Robert and Patricia stated that Patricia was in her room during the February 14, 2008 incident. Patricia said that there had been prior incidents of corporal punishment as to Robert. However, both children stated that Patricia was never present and that she was always in a different room. Robert said that he had no scars or marks on his body as a result of the incident.
Robert explained that when he ran out of the house on February 14, 2008, he was planning to take the subway to the home of his godmother, Sandra Nixon. At the time, Ms. Nixon was working for NYPD. However, since then she has retired. Before reaching the subway, Robert was stopped by people at the carwash. An individual there called 911.
Patricia reported that she was present in the home when NYPD arrived. After that, her mother was arrested and Patricia was brought to the 88th Precinct. Once there, she was met by Robert and two of her maternal aunts. Later, the family's pastor arrived as well. Patricia reported that they all prayed together and that she and Robert then went home with their aunt Laura.
Patricia reported that her mother had used corporal punishment with her on one occasion when she "was little." She did not remember how old she was when it happened, saying "like maybe three." Although she did not remember what happened at that time, she knew that no belts were involved. Patricia reported that since then she has been disciplined with "time outs." According to Patricia, this involves her having to go into a different room and stay there quietly for a while. After a period of time, she goes to talk to her mother and explains what she thinks she did wrong.
At the time of the Court's in camera interview, Patricia was attending the Children's Charter School. She was in third grade. She reported that her grades were "good," mostly As and Bs. Her favorite subjects were music and science. Patricia was a Girl Scout. She also attended cheerleading, dance classes and an after-school program associated with the church. During the summer of 2009, she attended a camp where she studied dance and music.
Patricia's father, William Munoz, resides in the Bronx. Patricia stated that she visits with him on some weekends and that she sleeps over at his house. During those visits Patricia spends time with her other half-brother.
Both children reported that corporal punishment is not used in the home and that there has been none since the incident that led to the filing of the petition. Neither child is afraid of their mother; nor are they afraid that she will use physical discipline with them.
Both of the children have historically done very well in school and have been involved in numerous extra-curricular activities, as well as programs offered by the family's church. At the time of the in camera interview, Robert was attending the Williamsburg Charter School. He was in 10th grade. His favorite classes were geometry and global studies. He reported that he was "not doing that well in school" and that his grades were mostly "like in the 70s." Robert was a Boy Scout and was working toward becoming an Eagle Scout. He said that his mother participated in Boy Scouts activities with him, including camping out. At his former school, Robert was on the swimming and basketball teams and he also played percussion in the school orchestra.
In 2009, Robert started at the Williamsburg Charter School. It did not have an orchestra and Robert left the swim team so he could concentrate more heavily on basketball. He previously attended a Rites of Passage program called the Eggbee Society, where he was assigned a mentor and he and other young African American men and women learned about college and other challenges that they will face in their lives in the future. He has taught younger children how to read and write and has taught swimming in the past. In the summer of 2009, he participated in an internship program at a restaurant in Harlem, Café 22. Robert said that he hoped to eventually open his own restaurant. He planned to obtain a degree in business, possibly from Howard University, before attending culinary school. Robert reported that all members of his family were supportive of his plans for the future.
Robert reported that his father, also named Robert W., resided in Virginia. He said that he visited his father during certain school vacations and summer breaks.
The children's statements that there had been no corporal punishment used since February 14, 2008, were corroborated by the testimony of Samuel C. Jones, D.S.W., L.C.S.W. Dr. Jones was qualified as an expert in social welfare and family therapy. Dr. Jones was called to testify by the Attorney for the Children.
Dr. Jones testified that he had been working with the mother and Robert since September 22, 2008. Throughout this period, he has also seen Robert for individual therapy. Sessions have been conducted once every two weeks for 45 — 60 minutes. In addition, the mother has occasional individual sessions with Dr. Jones, as well as family sessions with Dr. Jones and Robert together. Dr. Jones estimated that the mother has had approximately 18 sessions. He testified that some had taken place in his office and that some had taken place over the telephone. Dr. Jones testified that he saw "the client" as the family, not Robert or the mother individually.
Dr. Jones testified that there had been no corporal punishment used in the home since February 14, 2008, when the underlying incident took place. According to Dr. Jones, communication between the mother and Robert has significantly improved. He testified that Robert had learned to be more responsive to his mother. In addition, he testified that he had observed how the mother had changed when dealing with Robert in difficult situations. He testified that he had observed how she was able to give herself and Robert a "time out" during moments of stress or conflict. He testified that the mother had learned what stressors were most difficult for her and for Robert. He believed that the mother had also changed her understanding of her role in Robert's life. Dr. Jones testified that the mother previously thought that her role as a mother required that she correct her son and "keep him on the straight and narrow." Dr. Jones observed that this had changed and that the mother now believes that her role is to help her son. According to Dr. Jones this involved a change from punishing Robert when he did something wrong to assisting him in getting help.
Dr. Jones testified that the mother had learned to implement the new tools she had learned. Dr. Jones described a recent incident as an example. Apparently Robert and his mother had been visiting the home of the mother's godfather when she learned that money had been stolen from her godfather. When the mother confronted Robert, about whether he was responsible, he denied it. Although the mother was embarrassed and upset, she reacted calmly. She was able to give Robert and herself a "time-out" before discussing the incident. Thereafter, the mother and Robert were able to talk about what happened and he eventually acknowledged that he had taken the money.
The mother subsequently called Dr. Jones to talk to him about what happened and tell him about how she had handled it. Dr. Jones saw this as an example of how the mother had learned to utilize the tools that had been made available to her. She used conversations to deal with her embarrassment and other reactions rather than immediately react in anger and explode.
Dr. Jones also testified that the mother had become more active in her church but did not insist that Robert do the same. According to Dr. Jones, Robert was happy about his mother's activities because he thought that it was helpful to her. He also reported that he was pleased that his mother had asked him to join her but was accepting of his decision not to do so. He indicated that this was very different than how she would have handled such a situation in the past.
Dr. Jones also testified about how excited family members were when Robert was recruited by a coach from Xaverian Catholic High School and offered a partial scholarship. Dr. Jones explained that Robert had undergone a series of psychological tests indicating that he tends to be depressed and that his depression is related to his feelings of guilt. According to Dr. Jones, although Robert has historically had difficulty expressing emotions, he had made a lot of progress in therapy. Dr. Jones testified that pornography provided Robert with an opportunity to let go of his restraints. According to Dr. Jones this was problematic because Robert's use of pornography led to enormous feelings of guilt which then led to depression. Dr. Jones indicated that the mother had an understanding of this cycle and the problems that it created for her son.
The Family's Current Functioning
On the last day of fact-finding, NYCCS submitted an updated report describing the family's current circumstances. The report indicated that the mother is "providing a loving and stable home environment for her children." Robert is attending Xaverian Catholic High School and is in the 11th grade. He is on the varsity basketball team and has received a partial scholarship. NYCCS reported that team practice requires that he remain in school every day until 8:00 PM. According to NYCCS, Robert's counselor reported that he is "doing great on the team." He has a "C" average. He attends school every day wearing a shirt and tie. According to his counselor, his school attendance is "outstanding." This academic year he has been absent from school once and never late. NYCCS reported that they visited Robert at school and observed that he had a "professional appearance and a positive upbeat attitude."
NYCCS reported that Patricia is attending the Children Charter School and that she is in the fourth grade. NYCCS visited Patricia at home and school and described her as "a delightful, happy child. Patricia is friendly and when CPS saw her at home she was talking about the extra credit project that she [was doing] in school."
NYCCS reviewed her report card and indicated that she is "doing very [well] in school." NYCCS reported that Patricia's teachers describe her as an "enthusiastic, helpful girl with a big smile and strong sense of self." According to NYCCS, Patricia's teachers also reported that she "works hard in all subject areas each day, and she works well in partnerships and small groups. She is a frequent participant in class discussions, often sharing her ideas or asking questions. Patricia is making good progress in all subject areas and we expect her to continue her efforts as the year continues. But we are confident that Patricia will keep up her excellent work and maintain her strong habits every day."
Proposed Findings and Dispositional Order
In the report and during summation, NYCCS reiterated the request for a finding of neglect as to Robert and a derivative finding as to Patricia. In addition, NYCCS requested a dispositional order releasing the children to the mother with six additional months of supervision. As a condition of the release, NYCCS requested an order prohibiting the mother from using corporal punishment, directing that she ensure that Robert remained in therapy with Dr. Jones and directing that she cooperate with unannounced visits.
Legal Analysis 1. The Fact-Finding Hearing
Family Court Act § 1012 (f) (i) (B) defines a "neglected child" as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care;f6a60000ae512;b0090000dc613;f6a60000ae512;b0090000dc613 in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court.
In the instant case, the evidence adduced is sufficient to establish neglect by the mother as to Robert based on her use of excessive corporal punishment. The allegations of derivative neglect have also been established by the requisite quantity of evidence. By inflicting excessive corporal punishment upon Robert, the mother demonstrated a sufficiently flawed understanding of the duties of parenthood to warrant a finding of derivative neglect ( see e.g., Matter of Eli G., 189 AD2d 764 [2d Dept 1993]; Matter of Dareth O., 304 AD2d 667 [2d Dept 2003]).
2. Motion to Dismiss Pursuant to Family Court Act § 1051
Article 10 of the Family Court Act was enacted "to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" ( In re Commissioner of Social Services On Behalf of Leslie C., 161 Misc 2d 600 [Fam Ct, Kings County 1994]). The statutory scheme is intended to be "remedial, not; 5479;5479 punitive" in nature ( Matter of Diane P., 110 AD2d 354, 358 [2d Dept 1985]). That;5539;5539 purpose is subverted when it is used to punish parents in the name of child protection ( Matter of Jessica FF., 211 AD2d 948 [3d Dept 1995]; Matter of Jessica C., 132 Misc 2d 596 [Fam Ct, Queens County 1986]; Matter of Linda S., 148 Misc 2d 169 [Fam Ct, Westchester County 1990]; Matter of Theresa C., 121 Misc 2d 15 [Fam Ct, Monroe County 1983]).
Consistent with that purpose, Family Court Act § 1051(c) was enacted requiring the Family Court to dismiss a child protective proceeding even though there is sufficient evidence to support a finding of neglect where the court determines that "its aid is not required on the record before it" ( Matter of Angela D., 175 AD2d 244, 245 [2d Dept 1991]; Matter of Baby Girl W., 245 AD2d 830, 831-832 [3d Dept 1997]; Matter of Diana Y., 246 AD2d 340 [1st Dept 1998]; Matter of G., 91 Misc 2d 911 [Fam Ct, New York County 1977];; SR;3794; SR;3794 Matter of Hickey, 124 Misc 2d 667 [Fam Ct, Suffolk County 1984]; Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29 A, Judiciary Law, Family Ct Act § 1051, at 215 — 216).
Although this provision has been contained in the Family Court Act since its initial passage in 1962, such motions are not frequently granted. As a result, there is not a great deal of case law to elucidate its meaning and application. Nevertheless, a review of the limited existing case law establishes that the dispositive issue is whether the facts and circumstances establish that there is a likelihood of present or future neglect. In order to answer that question, the courts have considered a number of overlapping factors, including but not limited to, the nature of the original allegations, whether the underlying problems have been resolved and whether the respondent has complied with and completed all recommended services.
The Nature of the Original Allegations and whether there is an Ongoing Risk to the Children in the Home
The courts have considered the nature of the original allegations to the extent that they indicate a likelihood of future neglect. Accordingly, Family Court Act § 1051(c) has been applied in a number of cases involving allegations of medical and educational neglect where the underlying problems that led to the original filing were resolved by the time of the fact-finding hearing. For example, in Matter of Christine M. ( 157 Misc 2d 4 [Fam Ct, Kings County 1992]), a neglect petition was filed against a parent who for religious reasons refused to have a child inoculated during a measles epidemic. By the time the fact-finding hearing concluded, the measles outbreak had subsided. Because the parents had otherwise taken appropriate care of the children and because the epidemic was no longer at issue, the court dismissed the petition finding that its aid was no longer required. Likewise, in Matter of Hickey ( 124 Misc 2d 667 [Fam Ct, Suffolk County 1984]), the petition was dismissed pursuant to Family Court Act § 1051(c) in an educational neglect case because the child had attained the age beyond compulsory education during the pendency of the proceeding.
Nevertheless, relief under Family Court Act § 1051(c) is not limited to cases involving medical or educational neglect. In fact, "[n]o matter how serious the neglect, if the court concludes its aid is not required on the record before it, the court shall dismiss the petition" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Family Court Act § 1051, at 215). This point is illustrated in Matter of G. ( 91 Misc 2d 911 [Fam Ct, New York County 1977]), cited in the Practice Commentary. In that case, a neglect proceeding was brought against a mother who left her newborn infant in a waste receptacle. By the time of the hearing, the child had been home for an extended period and Visiting Nurse Services and caseworkers reported that no further services were necessary and that the mother and the child were doing well. During the hearing the court heard testimony from monitoring agencies that there was no danger of present or future neglect. They further reported that "a normal, healthy and affectionate parent-child relationship" had developed. Reports from an independent social worker, the police detective assigned to the case and the family's babysitter, all confirmed that there was no danger of neglect. For this reason, the court concluded that its aid was not required and it granted the application to dismiss the petition.
Applying similar reasoning, in Matter of BC (NYLJ, Jan. 24, 1997, p. 31 col. 2 [Fam Court, Dutchess County]), the court granted a Family Court Act § 1051(c) motion. In that case an infant in the home had sustained rib fractures. The court found that the injuries stemmed from the parents' failure to supervise another child in the home. Concluding that the original neglect was due to the parents' prior "youthfulness and immaturity," the court found that its aid was not required since both parents had undertaken remedial action and had completed all services that could have been part of any dispositional recommendations;116;116 ( see also In re Makynli N., 17 Misc 3d 1127 [A] [Fam Ct, Monroe County 2007]).
In Matter of Shondella M. ( 76 AD3d 428 [1st Dept 2010]) the Court reversed a neglect finding entered by the Family Court based on allegations of domestic violence that took place in the presence of the child. The appellate court held that there was no basis for continued supervision or for requiring respondent to participate in referrals made by the agency and that the petition should, therefore, be dismissed pursuant to Family Court Act § 1051(c). The Court emphasized that the respondent's relationship to her former boyfriend had ended and that the domestic violence between them had been an isolated incident. The Court also noted that the child was being raised "as a model person and student [who] wished to continue residing in the security of his mother's custody."
Without explicitly citing Family Court Act § 1051(c), the appellate courts have applied similar reasoning in dismissing certain neglect proceedings involving allegations of excessive corporal punishment by parents against adolescents. In these cases, the courts have considered whether the parent acknowledged that his or her actions were inappropriate ( Matter of Corey Mc. v Tanya Mc. , 67 AD3d 1015 , 1016 [2d Dept 2009] [Family Court erred in finding that the mother neglected her 15-year-old son based on her use of physical force during a verbal-turned-physical altercation where she slapped him and then hit him in the face with the heel of her shoe bloodying his nose; given the mother's ready acknowledgement that her actions were not an appropriate response to her son's conduct, the age and size of the child, the provocation and the dynamics of the incident, the mother's acts did not constitute neglect]; Matter of Amanda E., 279 AD2d 917, 918-919 [3d Dept 2001] [Family Court properly dismissed the neglect petition where the father struck his 16-year-old daughter and she sustained an injury during a verbal-turned-physical altercation given the child's age, the circumstances under which the altercation occurred and the isolated nature of the father's admittedly inappropriate conduct]).
The courts have also considered whether the use of excessive corporal punishment was an isolated instance or the parent regularly used excessive force ( Matter of Crystal S. , 74 AD3d 823 [2d Dept 2010] [although a single incident involving a parent's use of physical force may suffice to warrant a finding of neglect, there are instances where the record does not support such a finding, even where the parent's use of force was inappropriate; here the Family Court erred in finding that the mother neglected her 16-year-old daughter based on her use of physical force to stop the child from grabbing a knife during an altercation with the mother's boyfriend even though the mother held the child's arms very tightly causing swelling and a scratch where the argument was the result of the child's repeated refusal to obey the rules of the household]; Matter of Chanika B. , 60 AD3d 671 , 672 [2d Dept 2009] [Family Court erred by finding that the father neglected his daughter where he slapped her in the face, causing her nose to bleed because she had disobeyed him since he never hit her or her brother at any other time]; Matter of Alexander J.S. v David S., 72 AD3d 829 [2d Dept 2010] [Family Court erred by finding that the father neglected his daughter based on his use of excessive corporal punishment where he pulled her shirt when she failed to follow his instructions, caused her to fall to the floor, spanked her on the buttocks and hit her on her arm injuring her wrist since there was no evidence that he regularly used excessive force or intended to injure her]; Matter of Anthony PP., 291 AD2d 687, 688 [3d Dept 2002] [Family Court erred in finding that the father neglected his 11-year-old son based on his use of physical force on one occasion by pulling him out of the car by his shirt, throwing him on the ground and scraping his knee; the fact that the father lost his temper on prior occasions and reacted by screaming, hollering and leaving the house, did not constitute the level of violence that has been held to serve as a basis for neglect];
The courts have also considered whether the parent's use of physical force resulted in impairment or imminent risk of impairment to the child's physical mental or emotional condition ( Matter of Luke M., 193 AD2d 446, 446-447 [1st Dept 1993] [Family Court properly dismissed a neglect petition where the father struck his 11-year-old, five foot seven inch tall son in a family court waiting area after the child disappeared for 30 minutes, then refused to answer a question the father asked, the father slapped him, the son punched the father and a fight ensued; this isolated incident did not result in impairment or imminent risk of impairment sufficient to establish neglect]; Matter of John O. , 42 AD3d 687 , 687-688 [3d Dept 2007] [Family Court erred in finding that the mother neglected her 14-year-old daughter based on her use of physical force during a verbal-turned-physical altercation where the mother hit the child on the hand with a wax candle causing bruising since the child did not require medical attention and petitioner failed to establish serious harm or potential harm to the child]).
Respondent's Compliance with and Completion of Necessary Services and Evidence of Rehabilitation
In considering a motion under Family Court Act § 1051(c) courts have also focused on whether the parent has successfully completed all necessary services. For example, in Matter of Thomas (NYLJ, Mar. 3, 2000, p. 32, col. 4 [Fam Court, Queens County]), the court granted a § 1051(c) motion where the parent had completed services and the child was at home. In that case, the child was initially removed due to the mother's arrest. Nevertheless, by the time of the fact-finding hearing, the child had been returned home with preventive services in place and the mother had completed all services. Accordingly, the court found no basis to conclude that the child's interests required protection or that continued supervision by a child protective agency was appropriate.
Similar reasoning was applied by the court In re Makynli N. ( 17 Misc 3d 1127 [A] [Fam Ct, Monroe County 2007]). In that case, the court granted a Family Court Act § 1051(c) motion although the children had originally been removed as a result of injuries sustained by one of them from shaken baby syndrome caused by the father's paramour. In determining that the aid of the court was no longer required, the Family Court noted that the father had separated from his paramour, complied with all prior court orders and completed all recommended services. The court found "a normal, healthy and affectionate parent-child relationship" and that there was no danger of present or future neglect. The court concluded that dismissal was in the children's best interests since it would enable the father to pursue additional professional development opportunities and remain a more active presence in his young sons' lives by allowing him to leave his job as a long-distance truck driver and obtain employment closer to home. The court noted that the children were thriving in their father's care and that the Attorney for the Children supported dismissal as being in the boys' best interests.
In the Matter of Foreman ( 75 Misc 2d 348 [Fam Ct, Queens County 1973]), a neglect petition was filed alleging that the mother's excessive use of alcohol placed the child at imminent risk of impairment. By the time of the fact-finding hearing, the agency that provided treatment and other services to the mother, reported that she had adequately addressed her substance abuse problem and was ready to take on child-care responsibilities. In addition, because services to the family were available without a dispositional order, the Family Court granted the application to dismiss finding that its aid was no longer required.
Likewise, in the Matter of Arthur A. and Mary A. (NYLJ, Sept. 26, 2000, p. 32, col. 4 [Fam Ct, Queens County]), the court dismissed the petition alleging that the parents had used excessive corporal punishment and committed acts of domestic violence in the presence of the children. The court noted that the parents had complied with all prior orders of protection and had participated in all services requested, including parenting skills, anger management and individual and group counseling. Consequently, the court found that the parents had rehabilitated themselves during the pendency of the case and that there was no evidence that the children or respondents required protection or continued supervision by the child protective agency.
After considering the same factors, the court in Matter of J.H. and J.G. ( 2007 NY Slip Op 50587 [U] [Fam Court, Bronx County]), denied dismissal under Family Court Act § 1051(c) since the parent had not yet completed services and the children had not yet returned home. Although respondent was attending therapy and a chemical dependency program she had not completed either one. In addition, a mental health evaluation revealed that the parent had deep-seated emotional problems, including a suicide attempt and a prior psychiatric hospitalization. Accordingly, the Court concluded that ongoing monitoring and supervision were still required.
Similarly, In re Jessica S. ( 13 Misc 3d 505, 509 [Fam Ct, Kings County 2006]), the court denied a § 1051(c) motion where the respondent had failed to cooperate with appropriate services, including a domestic violence accountability program. The court found that respondent had failed to demonstrate that he had been rehabilitated. Likewise, in Matter of Baby Girl W.( 245 AD2d 830 [3d Dept 1997]), the Court held that dismissal under § 1051(c) was inappropriate and that continuing supervision was required where the parent had failed to accept adequate responsibility for the underlying incident. In that case, respondent maintained at fact-finding, as he had during his criminal trial, that he was not responsible for his son's death from shaken baby syndrome. Although respondent had successfully completed court-ordered parenting courses and counseling services, the Court held that supervision remained necessary since respondent failed to accept responsibility and therefore, failed to establish that he was rehabilitated.
Whether Continuing Supervision is Required and whether Services are Available without a Dispositional Order
Where respondent or the family continue to require supervision by a child protective agency, a Family Court Act § 1051 (c) motion must be denied because there can be no further supervision once the petition is dismissed ( Matter of Brandon C., 237 AD2d 821, 822 [3d Dept 1997]; see also Matter of Natasha A., 99 AD2d 533 [2d Dept 1984]). Accordingly the court must determine whether ongoing supervision is necessary to protect the children's interests.
In Matter of Lewis T. ( 249 AD2d 646 [3d Dept 1998]) the Court held that the Family Court erred by dismissing a neglect petition pursuant to Family Court Act § 1051 (c) since ongoing supervision was required. In that case the Court rejected the family court's conclusion that an award of sole legal custody to the non-respondent father was sufficient to protect the child's interests. The Court found that ongoing supervision by the agency was necessary to monitor the mother's conduct and supervise visits until the trial court was satisfied that the child was being adequately protected.
Likewise In re A.G.( 253 AD2d 318 [1st Dept 1999]), the Court found that the;3596;3596Family;3597;3597 Court erred in granting dismissal pursuant to Family Ct Act § 1051(c). The Court concluded that there was an ongoing need to ensure that the child would be protected from any possible repetition of respondent's sexually inappropriate conduct and to ensure that visits were supervised until the court was satisfied that the child would be protected from further improprieties.
In deciding whether "the aid of the court is required," the courts have also considered whether services are available to the family without a dispositional order and whether a dispositional order is necessary to ensure compliance. For example, in the Matter of Foreman ( 75 Misc 2d 348 [Fam Ct, Queens County 1973]), the court granted dismissal finding that the mother had addressed her substance abuse problem and that the agency that provided services agreed to voluntarily continue its supervision. Applying similar reasoning In re Loraida G. ( 183 Misc 2d 126, 134 [Fam Ct, Schnectady County 1999]), the court granted dismissal. In that case, the court concluded that respondent would continue to voluntarily participate in the services and programs aimed at assisting her without a dispositional order. The court noted that while respondent had more to learn about the needs of her developing infant, with supportive services in place and her openness to instruction, she was like any other new parent who had to learn about the stages of their developing child.
3. The Instant Case
Consideration of these factors in light of the facts at bar leads this Court to conclude that dismissal of the petitions is warranted pursuant to Family Court Act § 1051 (c). In reaching this conclusion, this Court is cognizant of the fact that this is a case involving serious and disturbing acts of excessive corporal punishment. Many of the allegations in the petition have been established by a fair preponderance of the credible evidence, which included the mother's testimony. The allegations of derivative neglect have also been established by the requisite quantity of evidence.
Nevertheless, "[n]o matter how serious the neglect, if the court concludes its aid is not required on the record before it, the court shall dismiss the petition" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Family Court Act § 1051, at 215). Having concluded that there is no basis for continued supervision or for requiring the mother to participate in referrals made by NYCCS, dismissal is mandated by the statute ( Matter of Shondella M., 76 AD3d 428).
Three years ago the mother beat her son with a belt. Although it was not the first time — it was the worst and it was the last. She realized that she needed help and she found it. She did not wait for NYCCS to tell her what she needed to do or to make referrals. Instead, two days after the incident, the mother found appropriate service providers and immediately started therapy. She thereafter attended services religiously. She completed parenting skills and anger management two-and-one-half years ago. Although individual and family therapy were not included in the service plan, the mother knew that she and Robert needed additional help. She again found appropriate treatment providers and two-and-one-half years ago she and Robert started attending therapy. They have remained in therapy since that time — not because NYCCS recommended it or because the court ordered it but — because she believed it was helpful.
From the outset, the mother took responsibility for her actions ( Matter of Baby Girl W.( 245 AD2d 830 [3d Dept 1997]), and for the care of her children. When her children were with kinship resources, she visited them almost every day. She did their laundry, reviewed their homework, made them lunch and shared breakfast and dinner with them whenever possible.
When caring for the children became difficult for the maternal aunt because of the need to transport them back and forth from Manhattan to Brooklyn, the mother reached out for help. She soon found it in Ms. Smith, a family friend and den mother for Robert's Boy Scout troop, who was able to ensure that the children remained in their schools and attended their extra-curricular activities.
Two months after the incident, with the support of NYCCS and the Attorney for the Children, the court granted the mother unsupervised visitation. Three months after that, with the support of NYCCS and the Attorney for the Children, the court temporarily released the children to the mother under supervision.
There has never been another incident. The mother has never violated the temporary orders of protection that were in place from February 15, 2008 until June 21, 2010. Since then, she has not used corporal punishment although the order of protection was vacated nine months ago. She has also complied with every other order issued by this Court.
The Attorney for the Children has repeatedly emphasized that her clients are thriving in their mother's care. She asserts that the aid of the court is no longer required and she strongly supports dismissal in the children's best interest ( In re Makynli N., 17 Misc 3d 1127 [A]).
NYCCS indicates that the children are thriving. They report that the mother is "providing a loving and stable home environment for her children." Robert is attending Xaverian Catholic High School and is in the 11th grade. He has received a partial scholarship. He is on the varsity basketball team. He is "doing great on the team." His school attendance is "outstanding" and he has "a professional appearance and a positive upbeat attitude."
According to NYCCS, Patricia is a "delightful, happy and friendly child." She is doing very well in school. Her teachers describe her as an "enthusiastic, helpful girl with a big smile and strong sense of self." She "works hard in all subject areas each day and she works well in partnerships and small groups." She is "a frequent participant in class discussions."
Robert and Patricia both have developed normal, healthy and affectionate parent-child relationships with the mother and there is no danger of present or future neglect ( Matter of G., 91 Misc 2d 911). The mother has fully engaged in services and successfully addressed the problems that led to the filing of the petition. In other words, she has rehabilitated herself during the pendency of this proceeding. Since the statutory scheme is intended to be remedial, not punitive in nature ( Matter of Diane P., 110 AD2d at 358), its purpose would be subverted if it were used here to punish the mother — and ultimately the children as well — in the name of child protection ( Matter of Jessica FF., 211 AD2d 948; Matter of Jessica C., 132 Misc 2d 596; Matter of Linda S., 148 Misc 2d 169; Matter of Theresa C., 121 Misc 2d 15).
NYCCS disagrees and requests findings of neglect and derivative neglect, as well as a dispositional order releasing the children to the mother with six additional months of supervision. In addition NYCCS seeks an order prohibiting the mother from using corporal punishment, directing that she ensure that Robert remains in therapy with Dr. Jones and that she cooperate with unannounced visits.
The record establishes that a dispositional order is unnecessary to achieve these objectives or protect the children's interests. From February 16, 2008 until June 21, 2010, a temporary order of protection prohibited the mother from using corporal punishment. Since June 21, 2010, there has been no order of protection in effect. There have been no acts of corporal punishment throughout this entire period with or without an order of protection. Accordingly, reinstating the order of protection at this point is unwarranted.
Additionally, the mother and Robert have been regularly and voluntarily attending individual and family therapy without agency assistance or a court order since September 2008. These are services that the mother felt were necessary and she found them on her own. Neither NYCCS nor the Court played any part. Accordingly, there is no legal or factual justification for ordering the mother to send Robert to therapy with Dr. Jones when she has voluntarily done exactly that for 30 months.
Finally, NYCCS requests that supervision be continued for six additional months. In support of that request, NYCCS claims that the mother "has not been compliant or cooperative with ACS's supervision." Although the identical contention has been repeatedly made and repeatedly rejected in the past, NYCCS again asserts that the mother has been uncooperative since she and the children are rarely home when caseworkers make unannounced visits during the day.
Given NYCCS's knowledge of the mother's work schedule and Robert's school and practice schedules, this claim is rejected as disingenuous in the extreme. In fact, this claim only serves to highlight the failure of NYCCS and the former foster care agency to make reasonable efforts to provide supervision in a manner consistent with the specific needs of this family. Indeed, the agency and NYCCS have been so inflexible and unaccommodating that the only way that the mother could have cooperated with supervision would have been to quit her job and instruct the children to discontinue their extra-curricular activities to return home every day immediately after school. This would have ensured that the family members were always home whenever a caseworker made an unannounced visit at a time convenient for the agency.
As NYCCS and the prior foster care agency well know, the mother works Monday through Friday until 7:00 PM and Robert plays basketball Monday through Friday until 8:00 PM. Nevertheless, rather than find a way to visit the home when family members were there, NYCCS continued to make unannounced visits on weekdays before 5:00 PM — times they knew the family would not be present — and then complain that the mother "does not seem to feel that she has to cooperate and comply with ACS supervision."
Despite NYCCS's insistence to the contrary, the mother has attempted to cooperate with supervision since the children were released to her care. In fact, when scheduling problems arose it was the mother — not the agency — that made numerous attempts to overcome them without requiring that she miss work or that the children miss school or their extracurricular activities. She suggested that she bring the children to the agency to meet with a caseworker or that a caseworker visit the home after work and practice hours or on weekends. When these suggestions were rejected, the mother proposed that NYCCS visit the children at school during school hours. She also suggested that they call her on her cell phone or her telephone at work.
Although NYCCS suggested that the mother bring the children to the agency, they insisted that she do so on weekdays before 5:00 PM — times they knew the family could not be present.
NYCCS and the agency rejected these suggestions insisting that the scheduling conflict could not be resolved and blamed the mother for being "uncooperative." They failed to propose any alternate plan for supervision tailored to needs of this family, although they apparently had the ability to do so at any time. This became most apparent on the last day of the fact-finding hearing when a new caseworker proposed that unannounced visits to the home be made by Emergency Children's Services (ECS). According to the caseworker, ECS is required to make visits to families at night and on weekends. No effort was made to explain why this suddenly became an option or why it was repeatedly rejected when it was the schedule suggested by the mother all along.
Finally, NYCCS's repeated assertion that the mother "should lose her job," is unsupported by the record. There is not one shred of evidence to suggest that the mother has ever posed a risk to any of her students. To the contrary, the unrebutted evidence adduced establishes that the mother is an "intelligent, caring supportive and dedicated professional who has always assisted the children in her charge[and] given of her time in an unselfish manner" (see Exhibit "1" in evidence, letter from Mr. Robinson, Principal of P.S. 123 and the mother's immediate supervisor dated Oct. 23, 2009).
Moreover, NYCCS has made no effort to reconcile its belief that the mother should lose her job with its obligation to protect the interests of Robert and Patricia. They have not even attempted to explain how their interests would be furthered by losing their only means of financial support, their health insurance and their financial stability. In this regard, the Court concurs with the Attorney for the Children that this result is unwarranted since there has never been any basis for the claim that the mother "posed a risk to her students and [Robert and Patricia] should not be punished because of this sort of conjecture," especially since there is "no demonstrated continued need for supervision and no continued reason to believe they are exposed to risk."
Conclusion
Although the problems in this family have not been eliminated, the mother's ability to address those problems has changed. During the last three years these changes have been repeatedly demonstrated by the mother's responses to stressful situations involving her son, including his use of internet pornography, stealing money from a family friend and lying to his mother about these events. The mother never resorted to corporal punishment. She had learned not to respond in moments of anger, stress or disappointment. Instead, she gave herself and Robert time to cool off until those feelings subsided. She was then able to talk to him about his behavior and her feelings without blowing up. She learned to rely on the strong support system she built involving members of her family and her church, and she and Robert continued to discuss these difficult issues in therapy.
The children have now been home for an extended period of time and ongoing supervision by NYCCS is no longer necessary to monitor the mother's conduct, supervise the home or otherwise ensure the Court that the children are being adequately protected. The Court does not question the mother's commitment to therapy and to doing whatever else may be necessary to ensure that the children's needs are met. The Court is fully satisfied that the children's interests are being protected by the mother ( In re A.G., 253 AD2d 318; Matter of Foreman, 75 Misc 2d 348; In re Loraida G., 183 Misc 2d 126, 134) and that dismissal is in their best interests.
For each of the forgoing reasons, it is
ORDERED, that the subject children are released to respondent mother; and it is further
ORDERED, that the petitions are dismissed pursuant to Family Court Act § 1051 (c).