Opinion
Docket No. NN-XXXXX-X/19
12-20-2021
In the MATTER OF JOSHUA F., Kanan O. Children Under Eighteen Years of Age Alleged to be Neglected by Hollyann G., Respondent
Darya Olshanetskaya, Esq., Administration for Children's Services, Family Court Legal Services, For the Petitioner Winsome Rhudd, Esq., Brooklyn, New York, For the Respondent Mother, Ms. G Aurora Curtis, Esq., Legal Aid Society, Juvenile Rights Practice For the Subject Children, Mahari Simmonds, Esq., Brooklyn Defender Services, Family Defense Practice, For the Father Mr. F Jennifer Marshall, Esq., Brooklyn, New York, For the Father Mr. O
Darya Olshanetskaya, Esq., Administration for Children's Services, Family Court Legal Services, For the Petitioner
Winsome Rhudd, Esq., Brooklyn, New York, For the Respondent Mother, Ms. G
Aurora Curtis, Esq., Legal Aid Society, Juvenile Rights Practice For the Subject Children, Mahari Simmonds, Esq., Brooklyn Defender Services, Family Defense Practice, For the Father Mr. F
Jennifer Marshall, Esq., Brooklyn, New York, For the Father Mr. O
Jacqueline B. Deane, J.
Procedural History and Factual Background
This Court held a fact-finding hearing pursuant to Family Court Act § 1044 in this child neglect proceeding against the Respondent mother, Ms. G, over the course of several dates, from April 12, 2021 until November 9, 2021.
Due to the closure of the courthouse to the public except for certain circumstances due to the Covid-19 pandemic, court proceedings have been, for the most part, entirely virtual since the end of March 2020.
At the fact-finding hearing, the Petitioner Administration for Children's Services ("Petitioner" or "ACS") called ACS caseworker Ms. Ramjit, and Mr. O, the non-respondent father of the older subject child Kanan, as witnesses. The Respondent called her mother as a witness and testified on her own behalf. The Attorney for the Children ("AFC") did not present any case and argued in favor of a finding of neglect. The Court reserved decision.
ACS originally filed this petition on October 23, 2019. Prior to that date, the two young subject children, Kanan (age 2 at the time) and Joshua (age 9 months), had resided either fully or partially in their mother's care. Ms. G was originally a non-respondent on an earlier neglect petition filed against Joshua's father, Mr. F, on July 26, 2019 which involved allegations of domestic violence against her, specifically that Mr. F punched her in the presence of both small children. At that time, Joshua was released to his mother and Kanan jointly to both of his parents as Ms. G and Mr. O had a previously-entered order of joint custody that allowed each approximately half of the week with him. On October 18, 2021, this Court made a neglect finding against Mr. F based on the evidence of domestic violence presented by ACS at trial which included the emotional, compelling and highly credible testimony of Ms. G who was cooperative in ACS's calling her as a witness. See Order of Fact-Finding, NN-20753-4/19, dated October 18, 2021.
The petition filed against Ms. G alleges neglect based on Ms. G's failure to provide adequate supervision or guardianship. Specifically, the petition alleges that she left Kanan with his father from early September to the date of filing without having any contact with the father or the child and that she left Joshua with his paternal grandmother for approximately the same amount of time also without any contact or provisions until October 2, 2019, when she apologized for disappearing but still did not take Joshua back. Additionally, the petition alleges that the caseworker had been trying to assist the mother with entering PATH in mid-September but was not able to make contact with her by phone.
Ms. G gave birth to a third son, Julian, on April 30, 2021 and ACS filed another petition against both Ms. G and the baby's father, Mr. F, adding Julian as a subject child on July 15th. Julian is temporarily directly placed with his maternal grandmother with an order that allows the mother to live in the same home and she is currently permitted to be with Julian unsupervised.
Evidence at Fact-finding Hearing
Kanan's father, Mr. O, testified that during his regular parenting time over Labor Day weekend in 2019, he was stabbed and hospitalized for approximately six weeks. He stated that Kanan was with his grandmother from the time this incident happened and that Ms. G did not pick Kanan up as per her regular schedule on Thursday, September 5th. Mr. O spoke to Ms. G from the hospital several times and she stated she planned to enter a family shelter and would pick Kanan up before doing so. However, Mr. O did not hear from the mother again until October and Kanan remained in the care of his family, or with him once he was out of the hospital, during the period alleged in the petition. Mr. O acknowledged that Ms. G did not have his grandmother's phone number or know where she lived and he did not provide it to her, although she did have his aunt's number who lived in the same home. Mr. O also testified that, while Ms. G did not visit him in the hospital, Ms. G's mother did. He stated that he spoke to Ms. G three to four times while he was in the hospital but that, to his knowledge, she did not speak to Kanan.
Caseworker Ramjit's testimony focused on her efforts to assist Ms. G in entering PATH to obtain a shelter placement with the two children as she was aware that Ms. G was a victim of domestic violence by Mr. F and had unstable housing because her mother had "kicked her out" in August. Ms. Ramjit originally messaged Ms. G about entering PATH on September 5, 2019 and then made a specific plan to meet her on September 13th and then pick up the boys to go to PATH. However, when Caseworker Ramjit arrived at the address that the mother had provided, Ms. G was not there and did not respond to texts. The caseworker testified that she tried to reach Ms. G over the next several weeks to make another plan but was unable to reach her until October 22nd. During this period of no contact, each child was with their paternal relatives and the caseworker did not raise any concerns about the care the children received from them. Once Caseworker Ramjit reached the mother, Ms. G explained that she had been working over that time to raise money to care for her children and that she had tried to see Joshua while he was with his paternal grandmother but that Mr. F's family would not let her see him. Ms. G also stated that she had given Joshua's benefit card to his paternal grandmother, who had agreed to care for Joshua, so that she could purchase food and other necessities for him. The caseworker testified that Kanan was with his paternal great-grandmother as Mr. O was in the hospital most of that time. As far as Ms. Ramjit was aware, Ms. G did not see either child during that time.
The maternal grandmother, Martha G, testified that, during the time Mr. O was hospitalized, she had "thrown out" her daughter from the home because she "wanted to teach her a lesson" and get her to grow up because she was choosing the wrong men. In particular, Ms. G felt that her daughter's current partner, Mr. F, had nothing to offer her as he had no job and was beating the Respondent mother up on a regular basis. The grandmother testified credibly that, while they were living together, she would see her daughter crying and with black eyes. On one occasion, she was awakened to the sound of her daughter screaming and crying and saw Mr. F chasing her into her bedroom. Additionally, Martha G stated that Mr. F would call her on the phone and threaten both her and her daughter, calling her daughter "bitch" and "whore." The grandmother believed her daughter kept going back to Mr. F because she was afraid of him. Although she kicked her daughter out, Ms. G stayed in touch with her and she went to see Mr. O in the hospital on her daughter's behalf. She also testified that she made arrangements to see Kanan through his great-grandmother and that her daughter would come see Kanan while he was in her care and bring him some food and clothes. At one point, her daughter did say she planned to enter a shelter. Ms. G testified openly and honestly and the Court was impressed by her level of insight and display of vulnerability. Ms. G said she was 19 years old when she got involved with Mr. F and that he had been extremely nice to her in the beginning of their relationship as was his family. She explained that she was looking for a family and that was part of her motivation to be with him. While there were red flags early in her relationship with Mr. F, she did not have a support system and he told her he never loved anyone as much as her. Ms. G testified emotionally about the abuse she suffered over the course of their relationship which began with Mr. F's attempts to control her clothes, looks and behavior and to hurt her emotionally by placing humiliating and demeaning posts on social media. The next year he began beating her regularly with a belt and sticks. Prior to her relationship with Mr. F, Ms. G testified that she had been involved with Mr. O when she was only 18 and he was 25. She stated that there was also a dynamic of power and control used against her in that relationship as well. Mr. O was verbally abusive and wanted her to remain home and cook and clean and only leave the house for school.
During the period relevant to the allegations, Ms. G explained that she was homeless because her mother had kicked her out in August and she felt ashamed because she had no money and no place to live. She was also trying not to be in a relationship with Mr. F as this was after the domestic violence incident that gave rise to the filing of the petition against him. As a result, she was too embarrassed to contact Mr. O's relatives to try to see Kanan so instead she waited until her mother took him for a visit to see him and bring him things. She also called Mr. O in the hospital as a way of checking on Kanan but she did not go see him as he had a new girlfriend so she felt that would be disrespectful; instead Ms. G asked her mother to go see Mr. O for her. Ms. G testified, "I just needed a job. I was working. I was alone. I had nothing." She explained that she wanted to have money before entering the shelter to "feel secure" caring for her kids and that is why she did not enter PATH when she had planned to meet the caseworker. Instead, she had obtained jobs at various places including the Metropolitan Museum of Art. Ms. G also testified that she was trying to see Joshua at the home of Mr. F's relatives but they had moved since the time of their relationship so she did not know the address. At that point, since ACS had filed the case against Mr. F and he was excluded from his relative's home since Joshua was placed there, the family was angry at Ms. G and she testified that his sisters would "try to fight her" if they saw her on the street. Meanwhile, Mr. F would lie to her about their address and send her places that they did not live when she hoped to see Joshua. Ms. G described feeling very alone as "she had no family involved on her side who would get involved like that." Pursuant to this Court's order releasing the subject children to her after a hearing pursuant to Family Court Act § 1027 in November of 2019, Ms. G did enter a shelter with both boys and was placed in Queens despite the fact that Kanan's day care was in Brooklyn and her job was in Manhattan. All of the travelling involved made it impossible for Ms. G to manage caring for both boys while maintaining her job and living in the shelter system so she only remained for a month. She was honest and heartfelt in stating that she felt worthless and like "everyone was saying [she] was a bad mom." Legal Analysis
On November 14, 2019, this Court found after a hearing that there was insufficient proof of imminent risk that could not be ameliorated by court orders as required by Family Court Act § 1027. See Decision and Order after FCA § 1027 Hearing, dated November 14, 2019. Kanan was released to both of his parents pursuant to the pre-existing custody order, and Joshua was released to his mother with the condition that Ms. G enter PATH with both children that day with ACS assistance.
In May of 2020, ACS filed an order to show cause to remove the children from Ms. G because she had left the shelter, returned to her mother's home, and allegedly allowed Mr. F into that home in violation of the order of protection. Because of on-going conflict with her mother, Ms. G left her home and was staying in low-cost hotels. Ms. G did not contest the removal at that time but continued to be permitted unsupervised visits with Kanan and Joshua. See Order on OTSC #1 dated May 21, 2020.
The Respondent in this case is a young mother of two, now three, small children who, the evidence is clear, was a victim of domestic violence on multiple occasions and was subjected to the controlling behavior of her children's two older fathers at a time when she lacked independent family or financial resources. The Court found Ms. G's explanations for the choices she made in the two month period relevant to these allegations, from September to October of 2019, to be both understandable and reasonable given her age and circumstances. At the time the petition was filed against Mr. F just a few months earlier in July, Ms. G was apparently taking adequate care of both children such that ACS did not file a petition against her then and agreed to the children's release to her.
On May 14, 2019, the Domestic Violence Survivors Justice Act ("DVSJA") was signed into law, amending Penal Law § 60.12 by authorizing the imposition of alternative sentences for survivors of domestic violence, and enacting Criminal Procedure Law § 440.47, providing a procedure by which these same survivors of domestic violence who are currently serving their sentences may apply to be resentenced. The legislation was born of the realization that "domestic violence and women's incarceration are inextricably linked" and that: "All too often, when a survivor defends herself or her children, our criminal justice system responds with harsh punishment instead of with compassion and assistance. Much of this punishment is the result of our state's current sentencing structure which does not allow judges discretion to fully consider the impact of domestic violence when determining sentence lengths. This leads to long, unfair prison sentences for many survivors." (NY Senate Assemb. Memorandum in Support of Bill A3110 [Jan. 26, 2017]). The DVSJA was intended to give the courts discretion to ameliorate the harsh effects of lengthy, mandatory sentences for victims of domestic violence where that violence was a significant contributing factor to their criminal behavior. In her recent decision applying this law to resentencing a defendant convicted of murder, Erie County Judge DiTullio references "numerous reports, including those by the United States Department of Justice, the Centers For Disease Control and the United States Department of Health & Human Services, as well as various law review and journal articles that detail the ravaging effects of domestic violence on its victims and the effects of that trauma on victims’ thought processes and behaviors tremendous progress has been made with respect to our collective understanding of the impact domestic violence has on its victims and the way in which we view victims’ conduct in the context of a criminal prosecution." People v. Smith , 69 Misc. 3d 1030, 1037-38, 132 N.Y.S.3d 251 [N.Y. Co. Ct. 2020]. While Article 10 proceedings are civil rather than criminal in nature and are founded upon the need to protect children's well-being regardless of the reasons for a parent's behavior, this Court believes it is appropriate to consider when a mother's mental state and conduct have been impacted by intimate partner violence especially where, as here, the evidence of any harm to the children is speculative at best.
The Court credits that Ms. G left the boys with their family members because she was trying to create a better life for them by focusing on earning money to provide her with some stability in supporting them. It is apparent that Ms. G did not feel she could manage working full-time while balancing the care of two very young children especially while living in a shelter where she could not control her location and without added support from her family, which she lacked at that time. The Court finds it significant that Ms. G exercised good judgment in the paternal family members she chose to leave the boys with and was correct to believe they would take good care of them. The Court credits that Ms. G provided a WIC card for Joshua and some necessities for Kanan through her mother. There is nothing wrong, or neglectful, with the mother's modifying the parenting time schedule with Kanan's father or relying on Joshua's grandparent at a time when she needed more coverage because of work, school or simply coping with the after-math of domestic violence. The concern here is that Ms. G did not clearly communicate her needs in making the arrangements with each caretaker and then did not maintain regular contact with the children, their caretakers, or the caseworker while she was not with them.
The Court does not believe that Ms. G's actions rose to the level of neglect within the meaning of Family Court Act section 1012. The Court credits that, at the time, Ms. G honestly believed her plan was in the best interests of her children as she was seeking to be able to financially provide for them when she resumed their care. The Court is also cognizant of Ms. G's young age and brain development in making this decision and the fact that she was in the throes of trying to extract herself from a relationship where this Court has now found that she was demeaned, controlled and physically abused. All of this impacted her thought process as well as her level of self-esteem and confidence. Given her years of victimization and the level of vulnerability that creates, it is entirely rational that Ms. G would feel the need to gain her bearings through a level of financial independence before she could care for her sons by herself, especially when she knew they had paternal relatives who lived in homes, rather than shelters, and who could provide greater stability. While one might disagree with her decision to leave the boys in others’ care as long as she did without more regular contact, that choice does not fall below the minimum degree of care as required under the law. See Family Court Act § 1012(f)(i). Moreover, there has been no actual evidence presented here by ACS that the children were harmed as a result and or even in imminent danger of harm given that the relatives took good care of the children and the period involved was under two months. See Matter of Zahir W. , 169 A.D.3d 909, 910, 94 N.Y.S.3d 329 [2d Dept. 2019] ("Although the mother failed to pick up the children from the aunt in the beginning of October 2016, as agreed, there was no evidence that the children were not being well-cared for by the aunt" and thus "ACS failed to establish that the mother neglected the children."); In re Kymani H. , 152 A.D.3d 519, 520, 57 N.Y.S.3d 215 [2d Dept. 2017] (Neglect finding reversed where "the child voluntarily left the mother's home to live with two individuals who were not biologically related to the child, but who had assumed the roles of the child's father and grandmother since the child was 18 months old [and] [w]hile living with these individuals, the child's needs were met and the mother spoke with the child and his caretakers [several times] per week."); Matter of Justelle R. , 60 Misc. 3d 1211(A), 110 N.Y.S.3d 218 [Fam. Ct. 2018] ("Sometimes adult children take advantage of their parents’ open hearts and goodwill, knowing that their own children will be okay with the grandparents. Such behavior may be wrong in the moral sense, and it may even fall below the minimum standards of parenting under the law. However, if the children are not harmed as a result and not in imminent danger of harm, it is not neglect as defined by law."); see also In re Justin P. , 148 A.D.3d 903, 904, 48 N.Y.S.3d 773 [2d Dept. 2017] ("The Family Court's finding that the child was neglected by the father's failure to exercise a minimum degree of care in supplying him with adequate food was not supported by a preponderance of the evidence [as] the father and the child were living with relatives during the relevant time period, and that the child was provided with meals by a family member when the father was working."); Matter of Jovann B. , 153 A.D.2d 858, 859, 545 N.Y.S.2d 376 [2d Dept. 1989] (Reversing the Family Court's finding that the children were neglected due to the Respondents’ failure to supply adequate food where the Petitioner's evidence demonstrated "the children's grandmother provided dinner for them almost every day."). "Actual or imminent danger of impairment is a ‘prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.’ " Matter of Zahir W. , 169 A.D.3d at 909-10, 94 N.Y.S.3d 329 [2d Dept. 2019]. There was no evidence of actual or imminent danger to the children as a result of Ms. G's actions or inactions in this case.
In the two and a half years this Court has come to know Ms. G through regular court appearances and her testimony in multiple hearings, this Court has been impressed by her intelligence, her sincerity and her manifested intention to improve herself and be a better mother to and provider for her children. She has matured in that time, which is shown by the fact that she has repaired her relationship with her mother who she has now been living with for more than six months since her newest child Julian was born. While this was not evidence at this hearing, the Court can take judicial notice of its orders and the reports received on Julian's case. The Court finds it is appropriate to take note of the progress Ms. G has made since Julian's birth as well as the challenges she continues to face in protecting herself from Mr. F. Ms. G may now be forced to leave her mother's home because of continued acts of domestic violence by Mr. F and repeated alleged violations of the order of protection. The Court has ordered ACS to assist Ms. G in getting the police to take appropriate action to find and arrest Mr. F who has made himself absent from these court proceedings for months and to help Ms. G relocate to a domestic violence shelter if necessary. Meanwhile, Ms. G has been attending school regularly to obtain a certificate as a Patient Care Technician and has been caring for Julian without any physical concerns about his well-being. See ACS Court Report dated 9/2/21. In addition to the fact that the Court finds there is insufficient evidence for finding neglect, the Court does not believe a finding against Ms. G is in the best interest of the subject children or in the interests of justice given that Ms. G is herself a victim who has, at clear risk to herself, cooperated in testifying for ACS to obtain a finding against her abuser. Therefore, for all the reasons stated above, the Court finds that the Petitioner failed to prove by a preponderance of the evidence that the Respondent mother neglected the subject children and the petition will be dismissed with prejudice. In light of the fact that the petition against Mr. F is still pending disposition and it contains orders regarding Kanan (who is released to his father) and Joshua (who is placed with ACS to reside with his paternal grandmother), there will be no change to the subject children's legal statuses at this time except that, in light of this decision, the Court is denying final relief on ACS's long pending motion for restored over-night unsupervised time with both of these children. The amount and schedule for that parenting time will be determined once Ms. G's current plan for remaining with her mother or entering a domestic violence shelter is clarified. The petition as to Julian is still pending pre-fact-finding as to both parents so his status is not impacted by this decision.
Pending before this Court is a motion by ACS requesting that this Court hold Mr. F in criminal contempt for violating this Court's order of protection. See Order to Show Cause, NN-30151-2/19, NN-20753-4/19, NN-07634-20, filed December 15, 2021.
In its decision in Nicholson v. Scopetta , the Court of Appeals considered the difficult issue of assessing the responsibility of a Respondent mother in a neglect case who is a domestic violence victim: "[F]or a battered mother- and ultimately for a court - what course of action constitutes a parent's exercise of a ‘minimum degree of care’ may include such considerations as: risks attendant to leaving, if the batterer has threatened to kill her if she does; risks attendant to staying and suffering continued abuse; risks attendant to seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant to criminal prosecution against the abuser; and risks attendant to relocation. Whether a particular mother in these circumstances has actually failed to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence, and the resources and options available to her." 3 N.Y.3d 357, 371, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]. In a related footnote, the Court states, "The Legislature has recognized this ‘quandary’ that a victim of domestic violence encounters. To avoid punitive responses from child protective services agencies, the Legislature attempted to increase awareness of child protective agencies of the dynamics of domestic violence and its impact on child protection by amending the Social Services Law to mandate comprehensive domestic violence training for child protective services workers." Id. at 371 n.6, 787 N.Y.S.2d 196, 820 N.E.2d 840 (citing Senate Mem. in Support, 2002 McKinney's Session Laws of NY, at 1861).
ACS filed a motion seeking to end the mother's unsupervised visits in April 2021 based on an altercation between Mr. O and the mother at an exchange of Kanan where the parents made cross-allegations, but ACS laid the blame on Ms. G. The Court initially granted interim relief making the visits supervised by approved resources but later restored Ms. G's unsupervised day visits. See Order on OTSC #2/3 dated September 20, 2021.