Opinion
No. XXXXX.
2010-03-8
In the Matter of L.B.C. A Child Under Eighteen Years of Age Alleged to be Neglected by L.G., Respondent.
Amanda Martinez, Esq., Family Court Legal Services, New York City Administration for Children's Services, Bronx, for Petitioner. Lina Del Plato, Esq., The Legal Aid Society, Juvenile Rights Division, Bronx, for the Child.
Amanda Martinez, Esq., Family Court Legal Services, New York City Administration for Children's Services, Bronx, for Petitioner. Lina Del Plato, Esq., The Legal Aid Society, Juvenile Rights Division, Bronx, for the Child.
Robert A. Leder, Esq., Riverdale, for Respondent.
JAMES E. d'AUGUSTE, J.
The respondent mother L.G. and the Legal Aid Society, as counsel for the subject child L.B.C., seek L.B.C.'s return to L.G. pursuant to Family Court Act (“FCA”) Section 1028 on the grounds that such return would not constitute an imminent risk to the child's life or health, particularly if L.G. is provided with proper support. SeeFCA § 1028; Nicholson v. Scoppetta, 3 NY3d 357 (2004). Having conducted an evidentiary hearing and giving due consideration to the credible evidence as applied to the relevant law, the Court orders L.B.C.'s return for the reasons stated hereafter.
Factual Background
This child protective proceeding began on February 1, 2010 when the New York City Administration for Children's Services (“ACS”) filed a neglect petition pursuant to FCA Article 10 against L.G. on behalf of the subject child, born on August 14, 2008. Specifically, the petition alleges three bases for a finding of neglect against L.G.: (1) L.B.C. was left unattended in a bathtub; (2) L.B.C. had a rash that allegedly turned into a fungal infection as a result of improper care; and (3) L.G. suffers from a mental health disorder for which she is not taking medication or receiving medical treatment. On January 26, 2010, six days prior to the filing of the petition, L.B.C. had been removed from L.G.'s care.
See Matter of the Comm'r of Social Services on Behalf of Alexandria H., 159 Misc.2d 345, 348 (Fam. Ct. Kings Cty.1993) (“Release of child to custody of her mother, upon filing of child protective proceeding, was “removal” under Family Court Act, entitling father, who was awarded joint custody of child, to hearing for child's immediate return.”).
ACS' involvement with L.B.C. originally resulted from a state central registry report relating to an inadequate guardianship allegation and domestic violence report concerning the non-respondent father S.C. and his wife E.L.C. During the tail-end of the ACS investigation into the case, E.L.C. alleged to the ACS case worker handling the investigation that L.G. neglects L.B.C. Notably, E.L.C. and L.G. have vied for S.C.'s affections over the past several years. In fact, L.G. has one child-in-common with S.C. and is apparently eight months pregnant with his second child.
On January 13, 2010 or January 14, 2010, E.L.C. provided the ACS case worker with information stating that L.G. allegedly left L.B.C. unattended in the bathtub. Also on that date, the ACS case worker observed L.B.C.'s diaper rash. As a result, the case worker recommended that E.L.C. and S.C. take the subject child to the emergency room; the emergency room doctor diagnosed the subject child with a fungal infection in her vaginal region and prescribed an ointment. During this conversation and home visit, E.L.C. also alleged to the ACS case worker that L.G. suffers from mental health issues. After discussing the allegations with L.G., approximately five or six days later, on January 19, 2010, the ACS case worker called in an oral report and transmittal (“ORT”) to the State Central Registry on L.G. A copy of the ORT was admitted into evidence as Petitioner's Exhibit 1.
Significant to this hearing an ACS Child Evaluation Specialist (“CPS worker”) conducted an investigation on January 20, 2010 in response to the ORT. As part of the investigation, CPS worker had to determine whether L.G.'s continued care of L.B.C. would constitute an imminent risk to her life or health. While the CPS worker's credentials were not documented at the hearing, the Court notes that an ACS Child Evaluation Specialist is required to possess a Masters in Social Work and is positioned throughout ACS to conduct assessments of children's needs. See Selina Higgins, LCSW, Coordinator for Family Team Conferences and the Child Evaluation and Family Assessment Programs, Administration for Children's Services ( available at http://www . naswnyc.org/NewCopy2005/SafetyandServices.html). As part of her investigation, the CPS worker interviewed L.G. and conducted an on-site inspection of L.G.'s apartment. She determined that L.G.'s continued care of L.B.C. would not constitute an imminent risk of harm to the life or health of the subject child.
After the CPS worker determined that L.G.'s continued care of L.B .C. would not constitute imminent risk to her life or health, the case was assigned to the above-mentioned ACS case worker, contrary to ACS procedure which does not normally provide for the assignment of a case to the same person that called in an ORT. The ACS case worker went to L.G.'s apartment on January 22, 2010, a time when L.B .C. was not in L.G.'s care. During that home visit, the ACS case worker testified that L.G. had adequate food for that week but further opined that more food would probably be needed for the following week.
The failure to provide the subject child with adequate food is not asserted in the neglect petition. In any event, the Court finds that the credible evidence overwhelmingly shows that L.G. had an adequate supply of food while L.B.C. was in her care. Such evidence included the testimony of a shelter worker, who conducts weekly unannounced inspections of L.G.'s apartment and has always found the apartment to be safe and stocked with adequate food.
On January 26, 2010, the non-respondent father and his wife filed for sole custody of L.B.C. in New York County Family Court.
The ACS case worker down played ACS' involvement in the filing of the custody petition and claimed that ACS merely made a statement to the non-respondent father and his wife that they could commence a custody proceeding if they were dissatisfied with the speed of the investigation. But court records
Notably, the testimony revealed that on February 11, 2009, the New York County Family Court (Strum, J.) granted joint legal and physical custody of L.B.C. to the respondent mother and the non-respondent father. The respondent mother testified to their parenting schedule: the respondent mother had physical custody of L.B.C. from 8:00 p.m. Saturdays until 12:00 noon on Wednesdays, and the non-respondent father had physical custody from 12:00 noon on Wednesdays until 8:00 p.m. on Saturdays.
indicate that ACS may have played an active role in the custody petition. Not only does the custody petition state that it was filed at ACS' direction, but a referee handling the matter noted on the case file that the non-respondent father orally represented the same in court. In fact, the Court read into the record a January 26, 2010 e-mail from an ACS court liaison indicating that ACS actually made a presentation in front of a Manhattan family court judge, which putatively resulted in an order granting the non-respondent father full custody of L.B.C. and ordering ACS to remove the subject child from L.G.'s care. L.G. was informed of the putative court order and L.B.C. was removed from her care on January 26, 2010.
The Court takes judicial notice of the court files for this related action between the mother and father. See Martin v. Martin, 61 AD3d 1297 (3d Dep't 2009).
The Court has reviewed the Manhattan family court file and there is no order granting sole custody to the non-respondent father nor directing the removal of the child from L.G.'s care. Nonetheless, ACS removed L.B.C. on this date.
On February 4, 2010, the Manhattan custody petition was dismissed without prejudice for failure of the parties to appear. A new custody petition was filed in the Bronx and is pending before this Court.
On January 27, 2010, as the ACS case worker met with E.L.C., an ACS supervisor met with L.G. The testimony revealed that L.G. was cooperative and engaging during that meeting, and she also agreed to participate in a family meeting the following day. On January 28, 2010, the ACS case worker testified that a family meeting was held, but transformed into a Child Safety Conference because of L.G.'s alleged erratic behavior. The Court notes that just before the family meeting started, E.L.C. served the custody petition on L.G. As the Court already noted, the custody petition clearly states that the non-respondent father filed the petition upon ACS' instruction. While ACS attempts to classify L.G.'s behavior as “erratic” and overall reflective of her mental health issues, the Court concludes that L.G. became understandably upset when served with the custody petition which references ACS' involvement in the application.
ACS filed this neglect petition on February 1, 2010. All parties accepted service of the petition that day and were assigned counsel; pursuant to an Order issued by this Court, the subject child was paroled to the non-respondent father's care and custody. On February 4, 2010, a preliminary conference was held. Referrals for services had not been made at that time, so the Court adjourned the matter to February 10, 2010 and again to February 18, 2010. On February 18, 2010, the preliminary conference was held wherein L.G. requested a hearing pursuant to FCA Section 1028 (“1028 Hearing”) seeking the return of the subject child. The parties consented to the calendaring of the 1028 Hearing on March 2, 2010 due to counsel's scheduling conflicts. The 1028 Hearing commenced on March 2, 2010 and continued day-to-day until its conclusion on March 4, 2010.
ACS called one witness, the assigned ACS case worker, and submitted the ORT as its sole exhibit. At the conclusion of petitioner's case, L.G. and the attorney for the child joined in a prima facie motion asking this Court to return L.B.C. to the respondent mother. The Court denied the prima facie motion, but, in doing so, the Court informed ACS' counsel that its sole witness had a credibility problem, given the clear affinity she had developed for E.L.C. Nonetheless, ACS recalled the assigned case worker as its only witness in its rebuttal case, rather than buttress its case with additional witnesses or documentary evidence.
L.G. credibly testified on her own behalf in support of her position for the return of L.B.C. to her care. L.G. was honest and forthcoming about her limitations and, at times, need for assistance given her situation as a single mother. L.G. submitted into evidence, as Respondent's Exhibit A, a form showing her current enrollment in parenting classes and individual counseling at TaylorMade. The attorney for the child called A.D., a social worker for the Legal Aid Society, and L.F., a case worker from the respondent mother's shelter; both testified that there was no imminent risk to L.B.C.'s health or safety if she was returned to L.G., especially if provided with appropriate support, such as a home aide. The attorney for the child submitted a request for consultation dated February 11, 2010 as Attorney for the Child's Exhibit A. Notably, all of the witnesses in the 1028 Hearing testified that J.H., a Licensed Master of Social Work, who works with L.G., also supported L.B.C.'s return to the respondent mother's care, particularly with appropriate supports in place. The attorney for the child submitted J.H.'s credentials into evidence as Attorney for the Child's Exhibit B. At the close of the hearing, on March 4, 2010, all counsel made oral summations to the Court. This decision follows the conclusion of the 1028 Hearing.
Legal Analysis
A child protective proceeding under Article 10 of the FCA establishes procedures to protect children from injury or mistreatment as well as safeguard their physical, mental and emotional well-being. NY Fam. Ct. Act § 1011. Most notably, child protective proceedings are also designed to provide “ due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met.” Id. (emphasis added); see In re Marino S., 100 N.Y.2d 361, 369 (2003) (wherein the Court of Appeals enunciated the “strong public policy of both keeping families together and protecting the health and safety of children.”). To achieve this end, the Court may, if necessary, remove a child from the care of his/her parent or other person legally responsible to help safeguard and protect the child. It is well recognized, however, that when children are removed from their caretakers and homes they experience emotional and psychological harm. Therefore, as reflected throughout FCA Article 10 and the relevant child protective case law, it is critically important that the harm children experience from removal is not unnecessarily prolonged if no imminent risk to their life and health exists by returning them to their parent(s).
Pursuant to FCA Section 1028, the Court must grant the respondent's application for return of the subject child(ren), unless it finds that the return presents an imminent risk to the child's life or health. NY Fam. Ct. Act § 1028(a); see In re Rosy S., 54 AD3d 377 (2d Dep't 2008) (“In determining whether there is imminent risk to life or health of children pursuant to statute pertaining to applications to return temporarily removed children, family court is required to balance risk to children should they be returned to custody of parent against harm that their removal might cause.”). The court must also consider, where appropriate, whether “reasonable efforts” were made by the child protective agency to prevent or eliminate the need for removal and whether efforts short of removal would not ameliorate the imminent risk. NY Fam. Ct. Act § 1028(b). In fact, the Court of Appeals, in Nicholson, acknowledged the Legislative goal of “placing increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble by removing the child from the family.” 3 NY3d 357, 374 (2004); see also Matter of Jesse, 64 AD3d 598 (2d Dep't 2009) (citing Nicholson, the Appellate Court found that there was insufficient evidence of imminent risk to the children upon return to the mother and noted the lower court's failure to consider if reasonable efforts could mitigate the risk to the children); In re Jeremiah L., 45 AD3d 771 (2d Dep't 2007)(stating that the lower court “[f]ailed to set forth any findings as to whether reasonable efforts were made prior to the date of the hearing to prevent or eliminate the need for removal of the child[ren] from the home' ”); Matter of Jamie C., 26 Misc.3d 580 (Fam. Ct. Kings Cty.2009)(noting that ACS did not provide the respondent mother with “sufficient services or referrals in response to her significant psychiatric needs” and that ACS had “ a duty to ensure ” that the services the respondent mother voluntarily obtained on her own “were appropriate” and expanded, if necessary, “to prevent the need for the children's removal.” (emphasis added)). Furthermore, the court must engage in a fact-intensive inquiry that includes weighing the imminent risk of harm to the child against “the harm removal might bring” and determining “which course is in the child's best interest.” Nicholson, 3 NY3d at 378;see, e.g., In re Lanaya B, 25 Misc.3d 981 (Fam. Ct. Kings Cty.2009) (“The Court found that the risk of emotional harm to Lanaya by continuing the removal outweighed any risk to her in the respondent's care and custody. Inasmuch as services had sufficiently mitigated such risk, the best interest of Lanaya was to be returned to her mother.”). The harm to the child must be “near or impending, not merely possible.” Nicholson, 3 NY3d at 369. In sum, a petitioner faces a considerable burden in seeking a court order for the continued removal of a child.
Mental Health Allegations
ACS asserts that L.G.'s allegedly untreated mental condition, including an allegation that she resists taking undisclosed medications, places L.B.C. in an imminent risk of harm to her life or health. ACS has failed to submit evidence of an accurate mental health diagnosis. Instead, ACS improperly seeks to rely on the bald fact that L.G. has been hospitalized several times in the past, which commenced after being raped by her step-father. The fact that L.G. has been previously hospitalized, the last being over two years ago, does not by itself support the conclusion that L.G. presents an imminent risk of harm to L.B.C.'s life or health. See In re Jayvien E., 2010 N.Y. Slip Op. 00892 (1st Dep't 2010) (finding that ACS failed to demonstrate imminent risk despite mother being hospitalized five or six times). The Court likewise rejects ACS' contention that L.G.'s conduct on January 28, 2010 at a so-called family conference demonstrates behavior touching upon mental health. As noted above, L.G. was served just prior to the meeting with papers seeking to eliminate her co-custodial rights as a parent putatively upon the direction of ACS. While L.G.'s behavior was inappropriate, it is understandable given the circumstances presented to this Court and is at odds with the overwhelming testimony that casts L.G. as both cooperative with ACS' investigation and highly motivated to obtain help in becoming a better parent. For example, L.G. enrolled in parenting skills classes, began counseling sessions, and participated in a mental health evaluation without any referrals or assistance from ACS.
This is not meant to prematurely decide in the absence of a complete mental heath evaluation whether L.G. may or may not need mental health counseling. In fact, it appears that L.G.'s prior mental health diagnoses have been inconsistent; as such, she is presently receiving a complete mental health evaluation to determine what, if any, therapy she may require. The Court fully credits L.G.'s testimony demonstrating that she recognizes her shortcomings and consistently seeks assistance when needed. L.G. has honestly admitted that at times she does feel overwhelmed; in those moments, she seeks help by calling her therapist, by addressing her concerns in a counseling session, or by going to the local emergency room to talk to someone about her apprehensions. Furthermore, L.G. testified that if she felt or experienced any issues concerning her mental health in the future, she would seek out assistance as she has consistently and repeatedly done in the past.
A.D. and L.F. credibly testified that they did not have mental health concerns relating to L.G.'s ability to care for L.B.C. if she was paroled to the respondent mother.
See In the Matter of Raymond A., 26 Misc.3d 394 (Fam. Ct. Kings Cty.2009). The respondent mother, much like L.G. in this case, volunteered information to the ACS case worker during an unannounced home visit about her mental health, her prescription for Depakote, and her engagement in therapy. Id. The respondent mother also testified to her strong support network. Id. Upon examination, the Court held that ACS failed to establish imminent risk to the child and failed to make reasonable efforts to prevent the removal. Id.
Parenting Allegations
L.G. left L.B.C. in a bathtub for approximately ten minutes while she cooked dinner in her apartment's kitchenette, about nine steps away from the bathroom. During L.B.C.'s time in the bathtub, L.G. looked in on L.B.C. once and kept tabs on her by speaking to her while she was bathing. Although only a short distant from the bathroom, L.G. testified that she now understands the potential harmful consequences of leaving a child unattended in a bathtub and that doing so was not a wise decision in the first place. The Court is satisfied that the mother understands the importance of child safety and notes that the offending circumstances have, in effect, been remedied—thus posing no imminent risk of harm to the life or safety of the child upon her return to the mother's home. This appears to be the exact conclusion reached by ACS when it originally investigated the matter on January 20, 2010, as L.B.C. was not removed from L.G.'s care at that time.
The actual facts surrounding L.B.C.'s rash are somewhat unclear: L.G. testified that she turned L.B.C. over to the non-respondent father on January 13, 2010 but the ACS case worker testified that she observed the rash on January 14, 2010. It was only during summation when ACS argued that the case worker may have actually seen L.B.C. a day earlier, on January 13, 2010. Counsel's argument is not a substitute for evidence, and the ACS case worker stated on multiple occasions that she saw L.B.C. on January 14, 2010. As the rash started in the non-respondent father's care and apparently worsened after L.G. retrieved L.B.C., the Court finds that the allegation regarding the rash is not proven at this juncture by a preponderance of the evidence.
Assuming arguendo that the rash was solely L.G.'s fault, imminent risk to the child has not been shown. Despite the testimony regarding a hospital visit and prescribed ointment for the rash, the petitioner failed to submit any medical documentation of the diagnosis or the prescription for the ointment. Additionally, the record makes clear that L.G. went to three different pharmacies on the date she discovered the “light pink rash with bumps” to purchase diaper rash ointment (all three of which were sold out), and applied both baby oil and baby powder in hopes it would heal the rash. As such, the Court finds that the respondent mother's alleged lack in diligence in procuring ointment from the pharmacy or taking the subject child to the doctor for a prescription does not amount to an imminent risk of harm to the child.
Moreover, any lingering concerns regarding L.G.'s judgment relating to the bathtub and rash incidents are ameliorated by the substantial support ordered by the Court. The Court has already directed that a homemaker or home aide be assigned to L.G. Likewise, L.G. is currently enrolled in a parenting class and has also agreed to participate in the Susan B. Chinitz Program, an intensive infant-parent prevention program being implemented by the Early Childhood Center of the Albert Einstein College of Medicine and the Bronx Family Court. The Chinitz Program is designed to improve and promote positive parenting interactions for parents of young children who are at risk of removal or have been removed. Furthermore, the Court notes that L.G.'s shelter makes unannounced visits to her apartment once per week. To this date, the shelter has not expressed any concerns as to the safety of L.G.'s apartment.
Balancing Test
The Court is required to balance any of the risks set forth above against the harm posed by L.B.C.'s continued removal from L.G.'s care. See Nicholson, 3 NY3d at 378. In concluding that L.B.C.'s return to L.G. does not constitute imminent risk, the Court further recognizes that continuing removal will have detrimental effects on L.B.C.'s physical, emotional, and developmental well-being. Additionally, the Court is taking into consideration, as it is entitled to do, the complete absence of any reasonable efforts to prevent or eliminate L.B.C.'s removal.
The Court also takes into account the fact that ACS has not made any reasonable efforts since L.B.C.'s removal. In fact, ACS has not referred L.G. for any recommended services, including parenting classes and a mental health evaluation, but it has provided services to the non-respondent father and his wife during this period of time. When the Court balances risk and harm, it concludes that L.B.C. should be immediately returned to L.G.'s co-custodial care with appropriate support, such as parenting classes, counseling, therapy, if necessary, and a homemaker or home health aide.
This Court respectfully quotes the Matter of Sem J.B. wherein the court states that the lack of reasonable efforts by the petitioner is “shocking” and “that the petitioner has not, to the court's knowledge, made one referral for either parent for any services ...” 11/13/97 N.Y.L.J. 30, col. 2 (2d Dep't 1997).
Conclusion
For the reasons set forth above, this Court finds that ACS has failed to prove that returning the child to the respondent mother would create an imminent risk of harm to the child's health and safety. The Court believes that it is in the subject child's best interest to be returned to her mother; therefore, the Court grants the respondent mother's application for return of her daughter L.B.C. pursuant to FCA Section 1028. Thus, during the pendency of this proceeding, the subject child is paroled to the respondent mother and the non-respondent father in accordance with their current custodial arrangement under the continued supervision of ACS pursuant to the following terms and conditions:
Respondent mother shall continue to participate in and complete parenting skills,
Respondent mother shall continue to participate in individual counseling sessions,
Respondent mother shall complete the pending mental health evaluation and comply with any recommendations regarding services,
Upon referral and acceptance to the program, respondent mother shall participate in the Susan B. Chinitz Program,
ACS shall provide the respondent mother with a home health aide or homemaker,
ACS shall put in place PPRS at the mother's home,
ACS shall follow-up with an Early Intervention evaluation for the subject child, and
Respondent mother shall ensure that the child's needs are fully met.