Opinion
XXXX
06-01-2020
In the Matter of Jonah M. & Isabel B., Children under Eighteen Years of Age Alleged to be Neglected by Isabel S. Aka Isabel M. & Jose B., Respondents.
Elissa Gleich, Esq. for ACS, presentment agency;Aleza Ross, Esq. for respondent mother Isabel S.; Angela De La Cruz, Esq. for respondent father/person legally responsible Jose B.; and Hayley Pine Esq. for the children (the Legal Aid Society).
Elissa Gleich, Esq. for ACS, presentment agency;Aleza Ross, Esq. for respondent mother Isabel S.; Angela De La Cruz, Esq. for respondent father/person legally responsible Jose B.; and Hayley Pine Esq. for the children (the Legal Aid Society). Tracey A. Bing, J.
The presentment agency, the Administration for Children's Services (hereinafter "ACS") filed a neglect petition on October 5, 2018 alleging that the respondents neglected the two children Jonah M. (DOB xx/xx/xx12) and Isabel B. (DOB xx/xx/xx18). ACS filed an order to show cause to amend the petition. Issued was joined. The motion was granted on August 23, 2019. There was no objection by the attorney for the child. ACS filed an amended petition on September 12, 2019. Service was effectuated on the mother on October 8, 2019 and on the father/person legally responsible on October 31, 2019.
The child Jonah's surname is listed as M. on his birth certificate. He is also listed as M. and M. in the petition. The Court uses the surname M. in this decision.
The petition alleges that the children Jonah M. and Isabel B., aged seven and one years old at the conclusion of the hearing, are children under the age of eighteen years whose physical, mental or emotional conditions have been impaired or is in imminent danger of becoming impaired as a result of the failure of their father/personal legally responsible, Jose B. and mother Isabel S. to exercise a minimum degree of care in providing the children with proper supervision and guardianship or who are abandoned under Social Services Law Section 384-b.
The allegations include that the respondent uses a drug while caring for the child Jonah and is not regularly and voluntarily participating in a rehabilitative program. The respondent mother made admissions regarding her drug use and inability to care for Jonah to the CPS worker. There is a neglect finding from Bronx County Family Court for the respondent mother for inadequate guardianship and supervision for the misuse of drugs and not participating in a substance abuse program. The mother suffers from a mental illness which impairs her ability to care for the children. The mother admitted that she has bi-polar disorder and is not engaged in mental health services. The caseworker observed the mother to have unprovoked mood changes. The mother admitted that she has a prescription for medication; but she does not take anything.
The allegations continue in that the respondent Mr. B. is the father of the child Isabel and the stepfather/person legally responsible (hereinafter "PLR") for Jonah. He uses marijuana but does participate in a rehabilitative program. He lives in the home with the mother. He knew or should have known that the mother used cocaine in front of the child. Both parents have not participated in services and they have not visited the children since November 2018. The case planner Ms. C. delivers a monthly letter to the respondents' home regarding services and visits. The respondent father/PLR made a statement acknowledging receipt of the letter and not participating in services or visits.
Counsels represented the parties as follows:
Elissa Gleich, Esq. for ACS, presentment agency; Aleza Ross, Esq. for respondent mother Isabel S.;Angela De La Cruz, Esq. for respondent father/person legally responsible Jose B.; and
Hayley Pine Esq. for the children (the Legal Aid Society).
Hearing:
The Court held an inquest hearing regarding the allegations pled in the petition filed on September 12, 2019. The Court began the inquest hearing on the allegations pled in the petition filed on October 5, 2018. These allegations are also pled in the September 12, 2019 petition. The hearing continued on December 16, 2019 regarding the additional allegations in the amended petition after the respondents were served. The Court reserved decision.
Counsels for the respondents did not participate in the hearing. The court takes a negative inference that the respondents did not appear for the fact finding hearing. ACS presented two witnesses: Ms. Joslyn H., CPS caseworker, and Ms. Gabriela C., case planner for the Children's Aid Society foster care agency. The Court credits the evidence presented and the testimony of Ms. H. and Ms. C. The Court had the unique opportunity to observe the witnesses and their demeanors during testimony.
Ms. H. credibly testified that she spoke to the respondents on October 3, 2018 at Montefiore Hospital. She spoke to the respondent mother alone. Ms. S. stated that she used cocaine because she was very overwhelmed with caring for Jonah. Ms. H. testified that the mother started crying, then laughing and wouldn't stop crying during her interview at the hospital. Ms. H. had to redirect Ms. S. to answer questions. Ms. H. had to repeat questions. She observed the mother to be "all over the place". Ms. H. testified that that the mother was amused that the father was in the home and didn't know that she was under the influence. The mother stated that the child Jonah was in the home. He was five or six years old then. The mother told Ms. H. that she was could not manage Jonah's behavior. The mother told Ms. H. that she was diagnosed with bipolar [depression] with manic episodes. She was not in services for eight years. She was referred to Brightpoint Health. She missed appointments. She was not feeling well in her pregnancy.
Ms. H. spoke to the father/PLR Mr. B. at the hospital. They discussed the mother testing positive test for cocaine. He told her that he didn't know that the mother used cocaine. He told her that he loved Jonah and stated that he was Jonah's stepfather. He told her that he was Isabel's father. He denied using cocaine. He told her that he lived with the mother and Jonah. Ms. H. spoke to the child Jonah. He told her that Mr. B. was his father, that he loved him and called him dad.
The Court credits the testimony of Ms. C. She was assigned to the family when the children were placed into foster care. She met the respondent mother at the agency during an October 2018 conference. She discussed the visitation schedule (Tuesdays and Thursdays 4pm-6pm) and her service plan with the mother. She met the respondent father/PLR during the first Court appearance in October 2018. Neither respondent has visited the children since November 2018. The respondents live together at the home she went to at the beginning of the court case. The case planner goes to the home monthly. She sends monthly case planning letters to the respondents. She spoke to the mother in November 2018. The mother stated that she does not visit because she has a bad back. The mother opened the door in December 2018. The respondent father/PLR answered the door on January 22, 2019. He confirmed that he doesn't plan on visiting for two hours because it hurts the feelings of the children. He told the case planner that he only has to lower his levels. He will not attend case planning meetings or visits. On August 15, 2019, he confirmed that the respondents receive her monthly letters. The parents have not contacted her to schedule visits or to discuss their service plans.
The Petitioner entered the following documents into evidence under FCA § 1046:
•Exhibit #1: certified birth certificate for Jonah M., listing Isabel M. as his mother;
•Exhibit #2: certified birth certificate for Isabel B. listing both respondents as her parents;
•Exhibit #3: certified and delegated Montefiore medical records for the child Isabel B.; and
•Exhibit #4 certified and delegated Montefiore medical records for the respondent mother Isabel S.
The competent, material and relevant evidence presented by the Presentment Agency proved that the respondent mother and child Isabel tested positive for cocaine when Isabel was born on October 2, 2018. See Petitioner #3, pages six, eighteen, ninety-four, and ninety-seven. The respondent mother came to Montefiore Hospital in active labor on xx/xx/xxxx. Both respondents came to the hospital smelling "strongly of marijuana." See Petitioner #4, page four.
The mother admitted that she saw her therapist five years ago. She was diagnosed with bipolar manic disorder five years. She was prescribed medication. She does not remember the name of the medication or clinic. See Petitioner #4, page twenty-three. The mother also admitted using cocaine to the social worker at Montefiore Hospital. She apologized for using cocaine and stated that it was a "one time thing". See Petitioner #4, pages twenty-eight and thirty-six.
The Court finds that the respondent is the father of the child Isabel and a person legally responsible (hereinafter "PLR") for Jonah. Mr. B. and the child Jonah stated that he is Jonah's "stepfather" and "dad" respectively. Exhibit #2 lists the respondent Mr. B. as Isabel's father. Ms. C. credibly testified that the respondents live together at the case address. The respondent mother told Ms. H. that the respondent father/PLR was in the home when she cared for Jonah. The child's statement that Mr. B. is his dad is corroborated by both respondents' statements to Ms. H.
Statutes
FCA § 1012
(f) "Neglected child" means a child less than eighteen years of age
(i) 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
(B) 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 misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of this subdivision; or (ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the Social Services Law, by his parents or other person legally responsible for his care.
SSL § 384-b
5. (a) For the purposes of this section, a child is "abandoned" by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.
(b) The subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent, shall not preclude a determination that such parent has abandoned his or her child. In making such determination, the court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in paragraph (a) of this subdivision.There are two requirements required by the Family Court Act for a finding of neglect. The presentment agency has the burden of proof. A preponderance of the evidence (FCA § 1046 [b] [i]) must demonstrate that a parent or person legally responsible for the child failed to exercise a minimum degree of care. A minimum degree of care is an objective standard requiring the court to determine whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" (Nicholson v Scoppetta, 3 NY3d 357, 368-370 [2004]; see also Matter of Afton C., 17 NY3d 1,4 [2011]). There must also be proof of actual or imminent danger or risk of physical, emotional or mental impairment to the subject child. Imminent danger or risk must be near or impending, not merely possible (FCA § 1012 [h]; Nicholson v Scoppetta, at 368-370). To establish neglect, as well, the "impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child" (Nicholson v Scoppetta, at 370). Only competent, material and relevant evidence may be admitted at a fact-finding hearing (see FCA § 1046 (b)(iii)). Even upon an inquest hearing, "these evidentiary requirements and standards must be met" (Matter of T.G., 53 Misc 3d 362, 363 [Family Ct, Kings County 2016]).
Decision:
Abandonment Cause of Action
The presentment agency proved by their case by a preponderance of the competent, material and relevant evidence presented. The attorney for the child consents to the Court entering a finding arguing that the Petitioner proved its case. The Court finds that the presentment agency and Petitioner proved by a preponderance of the evidence that the respondents neglected the children Isabel and Jonah by abandoning them under FCA §1012 [f] [ii] and SSL §384-b [5].
The children are under eighteen years old. Isabel was eleven months old and Jonah was 8 years old when the amended petition was filed. The respondents did not visit the children from November 2018 to December 2019. They did not comply with their service plans. They did not respond to the monthly letters sent to their home by Ms. C., case planner from the Children's Aid Society. Both respondents gave Ms. C. excuses why they could not visit the children. The case planner also went to the home monthly. In October 2018, the case planner met with the mother to schedule her visits for twice per week and to discuss her service plan. The mother did not follow up on either.
Isabel was three days old and Jonah was five years old when the original petition was filed on October 5, 2018. --------
On two separate occasions she spoke to one of the respondents who were home. On one occasion the mother said she couldn't visit the children due to a back injury. On one occasion the father/PLR stated that he could not visit the children for two hours because it would "hurt their feelings." The respondents did not appear at the fact finding hearing to rebut the presumption of their ability to visit the children and communicate with the agency. The Court finds that the respondents were able to visit the children and contact the agency as permitted under SSL 384-b [5].
Mental Health Cause of Action and Misuse of a Drug:
The presentment agency proved by the allegations in the petition filed against the mother by a preponderance of the competent, material and relevant evidence presented. The mother did not exercise a minimum degree of care in providing proper supervision and guardianship for the children. The attorney for the child consents to the Court entering a finding arguing that the Petitioner proved its case.
The children Jonah M. and Isabel B. are children under the age of eighteen years whose physical, mental or emotional conditions have been impaired or are in imminent danger of becoming impaired as a result of the respondent mother Ms. S.'s failure to exercise a minimum degree of care in providing proper supervision or guardianship, FCA §1012 [f] [i] [B] [ii]. The mother and Isabel tested positive for cocaine at Isabel's birth on xx/xx/xxxx. Petitioner #3 and Petitioner #4 support the Court's finding. The mother made admissions that she used cocaine to Ms. H. and the social worker at the hospital. She also told the hospital and Ms. H. that she had a bipolar diagnosis and was not in treatment or taking her prescribed medication. She admitted that she did not comply with referrals for mental health treatment. Ms. C. credibly testified that the mother did not contact the agency regarding her service plan. She sent monthly letters to the respondent mother and made monthly home visits. There was no evidence presented that the mother was voluntarily and regularly participating in a drug rehabilitation program. The respondent did not appear to rebut the presumption for misuse of a drug.
The mother told Ms. H. that she was overwhelmed with watching Jonah at home. Ms. H. observed the mother being unable to answer questions and laughing and crying while she was being interviewed at the hospital. Both children are neglected by the mother as she used cocaine and did not comply with treatment for her bipolar diagnosis. Isabel suffered physical impairment by testing positive for cocaine during her birth. The mother was not in mental health treatment at the time of Isabel's birth. Jonah was at risk of emotional and physical impairment as his mother cared for him while overwhelmed at home under the influence of cocaine and not receiving treatment for her bipolar diagnosis.
The Court relies on Nassau County v Dep't of Social Servs. Ex re. Dante M. v Denise J., 87 NY2d 93 [1995], Matter of Chastity O.C. (Angie O.C.), 136 AD3d 407, [1st Dept 2016], and Matter of Omarion T. (Isha M.), 128 AD3d 583, [1st Dept 2015] to make a finding of neglect due to the mother's drug use and failure to comply with treatment for her mental health condition. Respondent father/PLR failed to provide the children with proper supervision and guardianship by allowing to be inflicted harm or a substantial risk thereof:
The presentment agency failed to prove by a preponderance of the evidence that the respondent father/PLR knew or should have known that the respondent mother used cocaine. The presentment agency failed to prove by a preponderance of the evidence that the respondent father/PLR used an illicit substance and was not regularly and voluntarily participating in a rehabilitative program. The petition is dismissed with prejudice regarding this allegation only.
There was no documentary or testamentary evidence that the respondent father/PLR used cocaine or knew that the mother used cocaine. The testimony of Ms. H. was that the mother told her that the respondent father/PLR did not know that she used cocaine.
The matter is adjourned for a disposition hearing on July 29 , 2020 at 2:30-3pm subject to the Governor and Chief Judge directives pursuant to the National Public Health Emergency (COVID-19). Dated: June 1, 2020 So Ordered: Tracey A. Bing Hon. Tracey A. Bing Judge Family Court