Opinion
N-XXXXX/15
09-12-2016
In the Matter of Jamel B. ZARIA S., Children Under Eighteen Years of Age Adjudicated to be Neglected by Monica J. JAMEL B., Respondents.
Introduction
In this Article 10 proceeding, the Attorney for the Children ("AFC") filed an order to show cause on March 2, 2016 for (1) enforcement of this Court's order issued on December 10, 2015, December 11, 2015 and February 10, 2016, and (2) civil contempt against the Administration for Child Services ("ACS").
The Court's Orders
On December 10, 2015, this Court granted ACS's motion to remand the subject child Zaria and ordered that "ACS is to make every effort to place the Subject Child Zaria in the same home as her brother Jamel, either the home he is in or a new home." (Order, December 10, 2015, Deane, J.F.C., Kings County Family Court). ACS's motion was resolved the next day with a continued remand of Zaria and the Court entered the following order: "ACS is ordered, pursuant to FCA 1027-a, to place the Subject Children together in the same foster home in Brooklyn, no later than 1/10/2016." On February 10, 2016, the Court granted the AFC's motion to compel compliance and entered the following order: "The Court already ordered the children to be placed in the same foster home as per Court order dated 12/10/15 and there are no papers filed by ACS in opposition nor is there any motion before the court requesting a modification of the Court's 12/10/15 order." On March 7, 2016, ACS moved this Court to modify the Court's prior orders. This motion was heard simultaneously with the AFC's motion for contempt. The Hearing The Court held a contempt hearing over the course of three days. The hearing began on March 11, 2016 and continued on March 17, 2016 and May 31, 2016. The AFC introduced multiple exhibits into evidence including ACS court reports and then rested. ACS called four witnesses: Ms. B., Case planner with St. Christopher-Ottilie Family of Services Treatment Facility Foster Care Program ("SCO"), Ms. C., ACS Supervisor with the Office of Placement Administration ("OPA"), Ms. R.n, Child Protection Manager with OPA, and Ms. P., Home Finding Supervisor for Therapeutic Family Foster Care Program with St. Christopher-Ottilie Family of Services Treatment Facility Foster Care Program ("SCO"). The AFC then called Legal Aid Society Social Worker Ms. H. as a rebuttal witness. Based on the evidence adduced at the hearing, the Court makes the following findings of fact.
On October 8, 2015, Ms. P. of SCO began her involvement with this case when the subject child Jamel was initially remanded to foster care. On December 10, 2015, Jamel's sister, the subject child Zaria, was remanded to foster care. On December 10, 2015, December 11, 2015, and February 10, 2016, this Court clearly and unequivocally ordered ACS to place Jamel and Zaria in the same foster home. Ms. P. knew Jamel required therapeutic care due to his developmental delays, mental health issues, and encopresis. Although she was not initially involved when Zaria was placed in foster care with SCO on December 10, 2015, Ms. P. subsequently became aware of that placement and that a joint home for the siblings was requested in court the following day on December 11. Nonetheless, Ms. P. claimed to be unaware of the specific court orders issued in December and testified that she did not know if SCO was ever provided with a copy of any of the court orders. However, Ms. B. of SCO, case planner for Jamel and caseworker for Zaria, testified that she was aware of this Court's order for the children to be placed together in a foster home in Brooklyn on December 11 and sent an e-mail to the intake coordinator at SCO to begin this search. Ms. P. testified that SCO has been actively seeking a joint foster home for Jamel and Zaria since the Court ordered such on December 11.
In order to secure a joint foster home within their available inventory, Ms. P. stated that SCO first inquires whether a foster placement site is licensed for two children. Next, they review the information available on the children whom are to be placed. After these preliminary measures, SCO conducts a search for a home which can accommodate the specific needs of the children, taking into account their genders. According to Ms. P., there isn't a typical timeline for how long SCO should look to exhaust all of their options because new homes become available "all the time." Ms. R. stated that OPA will not accept requests for foster placements in a different agency until the assigned agency has conducted its own diligent search. The agency must first search within their own network of homes for different levels of care before they reach out to OPA, and Ms. R. confirmed that there is no pre-set time frame in which the search must be concluded. In addition, Ms. B. explained that, in this case, the foster home needed a dual certification as both a therapeutic (for Jamel) and regular (for Zaria) foster home, or, alternatively, it must be a regular home with a foster parent who could undergo expedited training to be certified as a therapeutic foster parent. Ms. P. testified that teenagers of opposite genders require separate bedrooms, making this search more difficult. Furthermore, therapeutic foster homes generally only accept one foster child per home; thus having more than one child placed in this type of home would be unusual, unless the children are siblings as they are in this case.
It is worth noting that the foster care regulations clearly require flexibility when seeking to realize the goal of placing siblings together in the same foster home. 18 NYCRR 443.3(a)(4) ("Separate bedrooms are required for children of the opposite sex over seven years of age, unless the children are siblings or half siblings sharing the same bedroom and the alternative sleeping arrangement is consistent with the health, safety, and welfare of each of the siblings or half-siblings and is necessary to keep the siblings or half siblings placed together in the same foster home."); see also NYS OCFS "Informational Letter," Subject: Flexibility in Sleeping Arrangement Requirements for Sibling Foster Care Placements (July 21, 2010).
This testimony is contrary to 18 NYCRR 443.3(a)(4). See supra, FN 2; see also 18 NYCRR 431.10 (listing factors to be considered in placing siblings in separate foster homes and notably not including "gender" among them).
SCO was initially unable to identify any foster homes, therapeutic or otherwise, with openings for two children in Brooklyn. SCO did identify one foster home in Brooklyn with the capacity to accommodate the subject children's needs, however the foster parent's father became very ill and thus the foster parent was ultimately unable to accept the children. SCO consequently expanded their search outside of Brooklyn as Ms. B. explained that SCO has very few foster placements in Brooklyn, and that there is a much higher percentage of homes in Queens. SCO conducted their search from December 11 to January 7, 2016.
Since SCO was unable to locate dually certified homes with available beds for Jamel and Zaria by the Court's January 10 deadline they referred the case back to OPA. SCO submitted the initial request to OPA's placement unit on January 7, however it was missing information, including a family team conference (FTC) summary and each child's psychosocial and psychological evaluations. The request was therefore incomplete and not processed for submission to OPA's intake unit until January 22. The intake unit reviewed and assigned the case to ACS Caseworker Shirley B. on January 25, 2016, two weeks after this Court's deadline for Zaria and Jamel to be placed together. Ms. C. of OPA testified that she received a request to find a new foster home for two children on January 25, 2016. Ms. R., Ms. C.'s manager, became personally aware of this referral that same day.
OPA placement summary reports were admitted as the AFC's Exhibits 1-3 and detail communication between OPA and the various contract agencies. OPA began their search in the borough of Brooklyn, and later expanded it to the other boroughs. To conduct this exploration, OPA electronically contacted all of their contracted agencies through a computerized information sharing system called "docket share", including seventeen therapeutic foster homes and more than twenty foster boarding homes. If they did not receive a response from an agency, OPA made a follow-up phone call within roughly a week. Ms. C. stated that she, Ms. G., and Ms. B. divided up the phone calls and that they made multiple phone calls and sent multiple e-mails to each potential agency. According to the March 10, 2016 report, OPA submitted fifteen referrals to Therapeutic Family Foster Care ("TFFC") programs. Of these referrals, eleven agencies did not have an available home for the subject children and three never responded. At that time, Cayuga Center was experiencing e-mail issues and did not receive the request until around March 1, 2016. In addition, OPA made twenty referrals to agencies for regular Foster Boarding Homes, twelve of which responded that they were not able to accept the subject children for placement and eight of which either never responded or did not provide a final answer.
ACS, through its attorneys, did not request any modification to the Court's orders due to inability to comply until the court-ordered deadline had passed and the AFC filed for contempt. At the AFC's request, the Court ordered that Zaria receive a mental health evaluation, after which a "step-up" conference was held on or around March 18, 2016. It was determined that she, like her brother, required a therapeutic foster home. OPA then re-referred the case to explore Brooklyn therapeutic foster homes and agencies in other boroughs with two therapeutic foster beds. Cayuga Center was one of these TFFC programs and, on March 3, indicated that it had a potential foster parent in the Bronx to match with the subject children. This prospective foster parent met with Zaria and Jamel on March 4, 2016. The visit went well and the potential foster parent agreed to further explore the match with the children by having an overnight visit from March 18 through March 20. On or around March 27, 2016, the subject children were placed in the Cayuga Bronx home where, according to Ms. H., the children share a room in a three-bedroom house with two other foster children. Legal Analysis
The AFC seeks to have this Court hold ACS in contempt pursuant to section 753 of the Judiciary Law, which states, A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced," in various circumstances including "any other disobedience to a lawful mandate of the court.
The goal of civil contempt is to vindicate the private right of a party to litigation. McCormick v Axelrod, 59 NY2d 574 [1983], amended, 60 NY2d 652 [1983]. Penalties imposed upon the contemnor are designed to compensate the injured party for loss or any interference with the party's right to litigation. Id.
The Court has the sole discretion to punish a party for civil contempt, and the movant has the burden of proving the contempt by clear and convincing evidence. Hughes v Kameneva, 96 AD3d 845, 846 [2d Dept 2012]; El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept 2013], affd, 26 NY3d 19 [2015]. To find contempt, first the movant must first establish that a clear and unequivocal mandate via a lawful order was in effect. McCormick v Axelrod, 59 NY2d at 583. Lawful orders must be clear, specific, and unequivocal in nature and issued by the court. Id. Second, the charged party must have actual knowledge of the existence and contents of the court's order; however, it is not necessary that the order be served upon the party. Id. Orders given at a hearing on the record may constitute actual knowledge where the parties have sufficient notice and opportunity to respond prior to determination. Id. Third, the movant must show with reasonable certainty that the order was disobeyed. Id. Finally, the non-movant's disobedience must be calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of another party to the litigation. Id. A mere act of disobedience is sufficient to sustain a finding of contempt where such disobedience prejudices the rights of a party. Matter of Bonnie H, 145 AD2d 830 [3d Dept 1988]; Ryan v Caputo, 222 AD2d 438 [2d Dept 1995].
The purpose of an Article 10 proceeding is to "protect children from injury of mistreatment and to help safeguard their physical, mental, and emotional well-being." Family Ct Act § 1011. Therefore, disobeying orders made to provide or arrange services for children defeats, impairs, impedes, and prejudices their rights and remedies in neglect proceedings. See In re Michael D., 30 Misc 3d 502 [Fam Ct 2010]. Acting in good faith and in the best interest of the child is not a defense. Matter of Bonnie H., 145 AD2d at 831. A hearing is not required unless there is a factual issue regarding the actual harm caused by the disobedience. Bowie v Bowie, 182 AD2d 1049, 1050 [3d Dept 1992]; Metzger v Metzger, 206 AD2d 352, 353 [2d Dept 1994]. Both the Attorney for the Children and counsel for the ACS stipulated at the hearing that ACS had knowledge of the court order and failed to comply with it. However, ACS has asserted a defense of inability to comply with the orders. Given the concessions made by ACS, the viability of this defense was the primary focus of the hearing before the Court.
Inability can be a defense to disobeying a lawful mandate; however it is not a defense if the contemnor created their own inability. In re Lanaya B., 25 Misc 3d 981, 990 [Fam Ct 2009] (citing U.S. v Swingline, Inc., 371 F Supp 37, 45 [EDNY 1974]; Matter of Terry, 151 Misc 2d 48 [Fam Ct 1991]. Upon asserting an inability defense, the burden shifts to the contemnor to prove such inability to comply with the order. El-Dehdan v. El-Dehdan, 114 AD3d at 18.
Here, the AFC argues that inability is not an available defense given that the subject children were ultimately, and are currently, placed in a therapeutic foster home where they share a bedroom without an exception to policy. This fact, according to the AFC, establishes that it was not "impossible" for ACS to comply with the order. Conversely, counsel for the Petitioner argues that the fact that ACS ultimately found a foster home for the subject children does not preclude this defense because it was impossible to comply with the Court's initial orders to have the children placed together in Brooklyn by January 10, 2016.
This argument lacks merit because the Petitioner has failed to provide evidence showing that ACS's inability was not of their own making. ACS did not complete their referral to expand the search beyond SCO via OPA until January 25, 2016, two weeks after Court's deadline for Zaria and Jamel to be placed together. Additionally, the Petitioner did not request any modification to the Court's orders due to inability until the court-ordered deadline had passed and even then failed to make any modification request until the AFC filed for contempt. Similarly, in Lanaya B., the Family Court issued a finding of contempt where ACS did not comply with its orders and did not provide any reason for their failure or seek modification prior to their failure to comply. In re Lanaya B., 25 Misc 3d at 989. Therefore, the ACS has failed to establish that their inability was not of their own making and thus cannot be afforded this defense.
Furthermore, good faith is not a defense to civil contempt; an act of disobedience, regardless of motive or intent, is sufficient for a civil contempt finding. Matter of Bonnie H., 145 AD2d at 831 ("It is Family Court which makes the order of disposition of children found to be neglected and once the order is made, respondent has no discretion but to comply with that order."). Proof of willful disobedience is not required for civil contempt. In re Michael D., 30 Misc 3d at 514; Matter of Terry, 151 Misc 2d 48. Counsel for ACS argued in their papers, though not on summation, that the agency had made diligent efforts to comply with this Court's order in that multiple departments of ACS, along with the various foster care agencies, have attempted to ensure that Jamel and Zaria were placed together in the same home. While the record details these efforts, it is also clear that greater efforts to obtain responses from the various agencies could have been made. Moreover, good faith efforts alone are insufficient to establish a defense to civil contempt.
In Bonnie H., the Family Court ordered visitation between the subject children and petitioner, their mother, which failed to occur. Matter of Bonnie H., 145 AD2d 830. The Commissioner of Social Services argued that they acted in good faith and in the best interests of the children; yet the Court concluded that "[i]t is Family Court which makes the order of disposition of children found to be neglected and once the order is made, respondent has no discretion but to comply with that order. Matter of Bonnie H, 145 AD2d at 831 [3d Dept 1988] (citing Family Ct Act §115 [a] [i]; § 1013 [a]). This Court clearly and unequivocally decided that placing Jamel and Zaria in the same home, ideally in Brooklyn, was in the best interests of the children, and ACS failed to comply with these orders. As in Bonnie H., Family Court has sole discretion to decide the best interests of the child and the act of disobedience itself is sufficient to find civil contempt; therefore, any diligent and/or good faith efforts made by ACS cannot be a meritorious defense.
Thus, this Court finds ACS in contempt of the Court's orders issued on December 10, 2015, December 11, 2015, and February 10, 2016 and ACS is therefore subject to the penalty determined by the Court. The issue that remains is what that penalty should be. The Judiciary Law § 773 states in part:
If an actual loss or injury has been caused to a party by reason of the misconduct proved against the offender an action may be maintained to recover damages for the loss or injury Where it is not shown that such an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner.
See In re Michael D., 30 Misc 3d 502; Matter of Terry, 151 Misc 2d 48. Here, no actual loss or injuries have been established so the Court is guided by the statutory amount of $250 per violation. The AFC cites one instance where a Family Court awarded $250 for each day ACS was in violation of the Court's order. See In re Lanaya B., 25 Misc 3d at 994 [Fam Ct 2009] (ACS ordered to pay $2,250.00 plus costs and expenses due to ACS failure to place child in kinship home with sister where mother could visit). When imposing penalties for civil contempt, the Court of Appeals has recommended looking to the remedial nature and effects of those penalties on the parties. McCain v Dinkins, 84 NY2d 216, 229 [1994]
The importance of fostering sibling relationships for youth who have experienced abuse or neglect and are separated from their homes has long been recognized. Section 1027-a of the Family Court Act establishes that "placement with siblings or half-siblings shall be presumptively in the child's best interests unless such placement would be contrary to the child's health, safety, or welfare." See also Family Ct Act § 1055 (c) (orders of placement "may include encouraging and facilitating visitation with the child by the child's siblings"); Office of Children and Family Serivces, Keeping Siblings Connected: A White Paper on Siblings in Foster Care and Adoptive Placements in New York State, ("the loss experienced by children who must be separated from their parents because of safety or other reasons is only compounded by the loss of contact with their siblings."). This Court's orders to place Jamel and Zaria in the same home were issued in furtherance of the best interests of the children and were made in accordance with the legislative intent of these statutes. The sibling relationship, particularly between siblings in foster care, is often "the most stable and consistent relationship available." See R. Mandelbaum, Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain their Relationships Post-Adoption, 41 N. Mex. Law Rev. 1, 29-34 (Spring 2011). "For youth already suffering the trauma of child abuse or neglect and separation from their homes, maintenance of their relationships with their siblings may be a vital lifeline, a protective shield against further trauma, an aid in coping with loss and grief, and essential to development of normal attachments and self esteem." Family Court Advisory and Rules Committee, Memorandum in Support of Legislation, Bill No. A9759. Furthermore, the New York State Office of Children and Family Services articulated in its Bill of Rights for Children and Youth in Foster Care that youth in the foster care system have a right to live with their brothers and sisters unless it has been determined that it is not in their best interests. The AFC stated during summation that Jamel is no longer experiencing encopresis now that he and Zaria have been placed in the same home. While the AFC's statement is not evidence and she did not submit proof of actual harm to the children, it reinforces that the significance of orders to place siblings together is that it is not only in their best interests to be in the same home, but that they will suffer emotional, mental and, sometimes, physical harm when they are kept separated in foster care.
This bill was subsequently passed and goes into effect on November 16, 2016. The legislation amends FCA 1027-a to add greater protections to insure sibling contact in foster care.
In this case where ACS violated three separate orders to place the subject children together without returning to Court to modify the orders or request extensions prior to the filing of this contempt motion, the Court finds the appropriate remedy to be a fine of $250.00 per child per order, totaling $750 per child or a total of $1500. In making this finding, the Court does take note of the difficulty ACS faced in finding one home that met the needs of these two children. The Court also notes that the greatest failures here were by the various foster care agencies who did not respond in a timely way, and in some instances even to OPA's request for them to search their foster home availability. However, ACS ultimately bears responsibility for the actions of these agencies and must have mechanisms in place to insure their compliance with ACS directives and court orders or penalize them for their failures. The above sum is to be placed in a bank account in trust for each of the subject children to obtain when they reach the age of 18. This constitutes the order and decision of this Court. Dated:Brooklyn, New York
The following agencies had still not responded to OPA's request as of the March 10 ACS court report, over one month after the initial request was sent out: Children's Village, Coalition for Hispanic Families, Mercy First, Catholic Guardian, Edwin Gould, Little Flower Children's Services, Lutheran Social Services, Seaman's Society for Children and Families. In some cases, the report documented numerous attempts to follow up on the requests with calls or e-mails that also went unanswered. --------
September 12, 2016
ENTER:
____________________________
Hon. Jacqueline B. Deane, J.F.C.