Opinion
178574
10-15-2019
In the MATTER OF AUBREY R., a Child Under Eighteen Years of Age Adjudicated to be Neglected by Tinisha R., Respondent.
Brooklyn Defender Services, Brooklyn (Daniela Mancini of counsel), for respondent. Administration for Children’s Services, Family Court Legal Services, Brooklyn (Bret Brintzenhofe of counsel), for petitioner. Louisa Floyd, Brooklyn, Attorney for the Child.
Brooklyn Defender Services, Brooklyn (Daniela Mancini of counsel), for respondent.
Administration for Children’s Services, Family Court Legal Services, Brooklyn (Bret Brintzenhofe of counsel), for petitioner.
Louisa Floyd, Brooklyn, Attorney for the Child.
Jacqueline B. Deane, J.
The Respondent mother, Ms. Tinisha R., has moved, pursuant to Family Court Act § 1061, to vacate the finding of neglect against her, which was made on her consent pursuant to Family Court Act § 1051(a) on August 6, 2018. The Administration for Children's Services ("ACS") and the Attorney for the Child ("AFC"), consented to the Respondent's period of supervision ending less than one year later, on May 2, 2019, because she had fully complied with the terms of the dispositional order, all services were completed, and the subject child, Aubrey, was doing well in her mother's care. ACS submitted a highly favorable report on May 2, 2019 describing Ms. R's excellent progress, current parenting capacity, insight, and full compliance with this Court's dispositional orders. See NYC ACS Court Ordered Supervision End of Order Report ("ACS Report"), dated May 2, 2019. Additionally on that date, ACS submitted similarly positive reports from Ms. R's service providers including the Jewish Board for Child and Family Services and Safe Horizon.
"Pursuant to Family Court Act § 1061, the court may modify an order issued during the course of a proceeding under article 10 for ‘good cause shown.’ " In re Sutton S. , 152 A.D.3d 608, 608, 58 N.Y.S.3d 532 [2d Dept. 2017]. "As with an initial order, the modified order must reflect a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances, and must be supported by a sound and substantial basis in the record." Id. (internal quotation marks omitted). "Giving Family Court the authority to modify an order upon a showing of good cause promotes the best interests of children." Matter of Angelina AA , 222 A.D.2d 967, 969, 635 N.Y.S.2d 775 [3d Dept. 1995].
In In re Araynah B. , the Family Court opined that there are four factors to be considered in a motion to modify a dispositional order to a grant a suspended judgment: "1) respondent's prior child protective history; (2) the seriousness of the offense; (3) respondent's remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent's amenability to correction, including compliance with court-ordered services and treatment." 34 Misc. 3d 566, 575, 939 N.Y.S.2d 239 [Fam. Ct. 2011]. These factors have been cited with approval by the Second Department in a recent affirmance of another Family Court's vacatur of a neglect finding. See Matter of Boston G. , 157 A.D.3d 675, 677, 66 N.Y.S.3d 628 [2d Dept. 2018] ("Under the particular circumstances of this case, including the mother's lack of any prior child protective history, her strict compliance with court-ordered services and treatment, and her commitment to ameliorating the issues that led to the finding of neglect, the mother demonstrated good cause to vacate the finding of neglect.").
While Ms. R does have a child protective history consisting of a single prior neglect finding, that finding dates back to conduct in 2011 and earlier, which is now over eight years ago. Second, the "offense" in this petition is entirely derivative of the underlying prior finding as to Ms. R's son, and the fact that at the time of Aubrey's birth, Ms. R had not addressed the services required by the dispositional order relating to her son's case. The latter two Araynah B. factors support vacatur here given the significant growth and progress Ms. R has shown since this filing which is addressed in the lengthy affidavit by Ms. R submitted with her motion. Therein, Ms. R demonstrates heartfelt remorse and sincere acknowledgement of her past problematic behaviors, from exposing her child to an abusive relationship to her inappropriate emotional responses to stressful situations.
Throughout the almost two years this case was pending before this Court, Ms. R has showed her newly-found openness and amenability to service interventions. For the first time, soon after this filing, Ms. R engaged in and completed trauma-focused counseling through Safe Horizon and learned the risk to her children of remaining with a partner who has been abusive to her. Ms. R states:
I also learned in therapy that as helpful as my therapists could be, I also needed to help myself. I knew I was not going to see [my son] Anthony's dad ever again because that was a way I could help myself. I know he is a danger to me and by extension a danger to my children. Before, I didn't understand that if he was only abuse to me, it was still bad for my children. I thought I was protecting them since he only ever physically hurt me, not them. Ow I know that if he is a danger to me, he is a danger to my children as well.
Respondent Mother's Affidavit in Support of Motion to Vacate Finding ("Respondent's Affidavit"), ¶ 22.
Ms. R also came to appreciate how her past traumas as a domestic violence victim had affected her parenting and behavior generally. See id. at pp. 4-5. She participated in and completed dyadic therapy with Aubrey and learned how to strengthen their attachment and heal the bonds broken by their separation. See id. at p. 5. Ms. R described how she came to appreciate how helpful the services were to her and the new perspective she gained on how to manage her emotions. She states:
I know that in the past I reacted poorly to hurtful and stressful situations and yelled or cursed at my son's foster mother or agency workers. The way that I spoke to other adults was the problem, and I have fully addressed and changed that behavior through hard work with my mental health counselors and insight into my trauma triggers.
Id. at ¶ 42.
In addition, Ms. R has shown her commitment to improving herself and her daughter's future. She has obtained a GED and a full-time job. Id. at ¶ 33. However, she is constrained in the jobs she can obtain because of the barrier erected by the neglect finding. Restricting Ms. R's employment from opportunities which might enable her to better support Aubrey is clearly not in the child's best interests. ACS argues that all of Ms. R's career goals are "speculative" and therefore should not be considered by this Court. See ACS's Affirmation in Opposition, p. 6. On the contrary, Ms. R speaks eloquently in her affidavit about various careers she has dreamed of having, all of which are in the "helping" professions. Ms. R states:
Ever since I was little, I've wanted to help people. I had a tough life and a tough upbringing, and I think those experiences and the insight I've gained
destined me to be some kind of savior
and helper, whether to children or the elderly — I want to help whoever is in need.
Respondent's Affidavit, ¶ 37.
Parents who have learned and benefitted from the interventions of the Family Court after a neglect finding should be supported and encouraged in pursuing the same dreams and career goals as any other parent. Given the typically limited financial means of most court-involved families, these parents should not be required to invest money and time in schooling or training programs for careers that will be foreclosed to them unless their findings are vacated, in order to prove these dreams are not "speculative."
Finally, Ms. R speaks powerfully about the continued impact of having a finding of neglect on her self-esteem given that she has changed as a person and mother:
To have a neglect finding, it's awful. I'm painted to be this horrible person, but I have changed and grown. I just want to try and do my best because as long as I feel like I tried my best, I can feel a little better. And I have tried my best in this case. Having a neglect finding is keeping me categorized as this awful person and not letting me pursue my lifelong dream of helping others."
Id. at ¶ 39.
"Giving Family Court the authority to modify an order upon a showing of good cause promotes the best interests of children." Matter of Angelina AA , 222 A.D.2d 967, 969, 635 N.Y.S.2d 775 [3d Dept. 1995]. Child protective proceedings are not intended to be "punitive in nature," see Matter of Diane P. , 110 A.D.2d 354, 358, 494 N.Y.S.2d 881 [2d Dept. 1985], but are rather meant to serve the best interests of children by addressing issues related to their welfare. When such issues have been addressed, the goal of reuniting a family safely has been met, and a parent has fully taken ownership of and successfully learned from her actions such that those issues have been remediated, that parent should have the opportunity to vacate the finding against her and put the child welfare system's involvement behind her and her family.
It is true that Ms. R has a child protective history with her first child, Anthony, and that she failed to address the underlying issues in time to prevent the agency from moving to terminate her parental rights. Because of this failure, Ms. R has already paid the ultimate price of her losing her parental rights to Anthony in 2016. Given the changes Ms. R has made in the past two years, there is no reason for the system to continue to exact a price for her prior failures. Notably, as discussed above, part of that prior history is of Ms. R being the victim of domestic violence and her difficulty in extracting herself from that abusive relationship. The Court is well aware of the challenges faced by survivors of domestic abuse and the fact that it can take an extended period of time to gain the necessary self-esteem and independence to free themselves from these controlling and violent relationships. The goal of Family Court is to provide opportunities to assist parents through this process in the hope that they will engage in only safe and healthy relationships in the future. A story such as Ms. R's should be celebrated by ACS, as it is by this Court, since the system's goal has been achieved.
In contrast to ACS's response, the AFC, who represented Ms. R's older son who was adopted and is therefore fully aware of the mother's child protective history, supports the vacatur. In her Affirmation in Support, the AFC states, "Ms. R took responsibility for her actions and poor choices when she consented to the finding of neglect Ms. R has really turned her life around and has become a good parent to her daughter. I agree that there is no benefit to Aubrey for her mother to have this second finding of neglect." Attorney for the Child's Affirmation in Support, dated September 5, 2019.
Therefore, based on the Respondent's motion papers and exhibits, the support of the AFC, and the interests of justice, this Court finds good cause to grant Ms. R's motion to vacate the neglect finding against her pursuant to FCA § 1061. See Matter of Emma R. , 173 A.D.3d 1037, 1039, 106 N.Y.S.3d 69 [2d Dept. 2019] ; In re Daniella A. , 153 A.D.3d 426, 427, 60 N.Y.S.3d 116 [1st Dept. 2017].
The finding of neglect is vacated and the petition is dismissed with prejudice.