Opinion
02-09-2015
In the Matter of I.R., a Child Under Eighteen Years of Age Alleged to be Neglected by N.R., A.R., H.R., S.G., Respondents.
Michael Cordozo, by Special Assistant Corporation Counsel, Elaine Ku, Esq., Brooklyn, Corporation Counsel. Lance Kramer, Esq., Brooklyn, attorney for the Mother. Frank A. Buono, Esq., Brooklyn, attorney for the Father. Fred A. Wertheimer, Esq., Brooklyn, attorney for the Step–Grandmother. Laura Matthews–Jolly, Esq., Brooklyn Defender Services, Brooklyn, attorney for the Grandmother. Laura Paley, Esq., Juvenile Rights Practice, Brooklyn, attorney for the Child.
Michael Cordozo, by Special Assistant Corporation Counsel, Elaine Ku, Esq., Brooklyn, Corporation Counsel.
Lance Kramer, Esq., Brooklyn, attorney for the Mother.
Frank A. Buono, Esq., Brooklyn, attorney for the Father.
Fred A. Wertheimer, Esq., Brooklyn, attorney for the Step–Grandmother.
Laura Matthews–Jolly, Esq., Brooklyn Defender Services, Brooklyn, attorney for the Grandmother.
Laura Paley, Esq., Juvenile Rights Practice, Brooklyn, attorney for the Child.
ANN E. O'SHEA, J. The Administration for Children's Services (AACS), alleges in its petition that the subject child (DOB 2/21/14) sustained four leg fractures that would ordinarily not be sustained except as a result of acts or omissions of the Mother, the Father, the Maternal Grandparent, and/or her partner (the Step Grandmother), each of whom had responsibility to one degree or another for the care of the child. Respondents all denied doing anything to injure the child. The child was removed from the parents' care and placed in foster care with the SCO Family Services foster care agency in January 2014.
A prefact-finding service plan was developed for each of the Respondents. At a Permanency Planning hearing held on February 2 and 9, the Agency submitted two reports indicating that all the Respondents, except the Father, have completed all the requested services. Based on the reports, the Mother requested that she be permitted unsupervised visits with the child. The Attorney for the Child does not object to unsupervised visits between the Mother and the child.
In its report, dated February 2, 2015, the Agency related the report and recommendations of Families In Recovery, the parenting-skills program provider to which the Mother had been referred. The report is from Kristine A., Komada, Ph.D, a Families In Recovery psychologist:
On the basis of almost 8 months of weekly contact with Ms. Rivera [the Mother] in class and observing her interaction with her daughter on two occasions,
she has done nothing to raise concerns about her daughter's safety or present any risks.... Therapeutically, Ms. Rivera has benefitted from this class B she has become more in touch with her feelings
and better able to express herself. She recognizes her strengths and has more self confidence. She is able to withstand stressful situations and respond appropriately. Ms. Rivera shows her maturity in a number of ways, such as good attendance, positive interactions in stressful group situations with peers and shows a lot of personal insight. She has used this crisis as a way to mature personally. On the basis of these experiences with Ms. Rivera, it is recommended that she be able to have unsupervised visits with her daughter. Overnight visits can also be considered in the nearest future....
Despite the Families In Recovery report and recommendation, ACS objects to the Mother being permitted unsupervised visits, arguing only that the Child suffered serious, unexplained injuries and, in these circumstances, such visits should not be permitted prior to fact-finding.
During the pendency of an abuse or neglect proceeding, a respondent whose child is in the care and custody of ACS shall have the right to reasonable and regularly scheduled visitation ( FCA § 1030[a] ) with the child and shall have the right to reasonable and regularly scheduled visitation ( FCA § 1030 [c]; see In the Matter of Nyla W., 105 A.D.3d 861, 962 N.Y.S.2d 687 [2d Dept.2013] ; Matter of Nyasia J., 41 A.D.3d 478, 479, 838 N.Y.S.2d 138 [2d Dept.2007] ). The foster-care agency in charge of supervising the child is required to provide suitable arrangements for the parents to visit the child ( SSL § 384–b[7][f] ). Suitable arrangements pertain not only to the physical space for visits, but also the nature, duration, and quality of the visits (see, e.g., Matter of Fish v. Fish, 112 A.D.3d 1161, 1162, 976 N.Y.S.2d 727 [3d Dept.2013] ; see also In re Robert F., 195 A.D.2d 715, 600 N.Y.S.2d 307 [3d Dept.2013] ). ACS's "Policy Guidelines for Determining the Appropriate Level of Supervision for Family Visits" (Guidelines) require foster-care agencies to implement unsupervised visits "unless visitation poses a risk to the physical and/or emotional safety of the child; there is reason to believe that the parent may attempt to interfere with, manipulate or coerce the child's potential testimony; or there is a court order requiring a higher level of supervision." The Guidelines also require that "[p]arents with children in care should not remain in supervised visits when no safety issues require supervision."
The fact that this is a res ipsa case, which has not yet gone to fact finding, is not a basis to deny the Mother unsupervised visits (see In the Matter of Matthew W., 125 A.D.3d 677, 2 N.Y.S.3d 611 [2d Dept.2015] (upholding Family Court's order granting parents, who were compliant with their service plan, pre-fact finding unsupervised, overnight visits and directing the Agency to thereafter temporarily release the child to the parents' custody in the absence of good cause); In the Matter of Nyla W., 105 A.D.3d 861, 962 N.Y.S.2d 687 [2d Dept.2013] (after a partial hearing under FCA § 1028 and before fact-finding, Family Court providently exercised its discretion in awarding the Mother up to four hours of unsupervised visitation three times per week); but see In the Matter of Bree W., 98 A.D.3d 522, 949 N.Y.S.2d 185 [2d Dept.2012] (the safer course was to deny unsupervised visits until conclusion of a full fact-finding hearing) but compare Nicholson v. Scoppetta, 3 N.Y.3d 357, 380, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] (in considering whether to remove a child, a default to a "safer course ... should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption")).
The question presently before the Court in this case is not whether the Mother did something in the past to cause the child's injuries; that will be determined at a fact-finding hearing. Rather, the question is whether permitting the Mother and child to have unsupervised visits now will expose the child to a risk of harm. As with many issues confronting Family Court, the question requires a prediction, which, by its nature, can never be certain. Nonetheless, the Court must make its predictive determination based upon the evidence presented.
Here, the Agency's own evidence, submitted at the Permanency Planning hearing, establishes that the Mother has completed her service plan, visits the child consistently, has profited by her services, is completely appropriate with the Child. Most compelling, the organization to which Agency referred the Mother for parenting-skills a program and individual counseling recommends that the Mother be permitted unsupervised visits—even overnight visits. That is the only evidence that the Agency has provided with respect to the question of whether the Mother should be permitted unsupervised visits. There is nothing else before the Court, and there is nothing to contradict those recommendations. It should also be noted that, although fact finding was scheduled to begin on March 2, 2015, it must be adjourned because ACS has not yet obtained or provided Respondents or the Attorney for the Child with crucial hospital records or even a definitive witness list—including the experts it intends to call along with the information required by CPLR § 3101(d). To deny the Mother—and the child—unsupervised visits until after fact finding when fact finding will be delayed for months because ACS has not gotten its evidence and witnesses together is not acceptable.
The evidence, the statute, the case law, and ACS's Guidelines all support, if not require, the Court to order that the Mother be permitted unsupervised visits. Therefore, the Mother's application for unsupervised visits is granted over ACS's objection. The Mother and the foster parents shall schedule the visits as frequently as they can.