Opinion
xxxx
12-23-2016
In the Matter of Novelise M. A Child Under the Age of Eighteen Years Alleged to be Neglected by Laisha M., Respondent.
Zachary Gaynor, Esq., NYC Assistant Corporation Counsel, petitioner Hayley M. Lichterman, Esq., Legal Aid Society, for the Respondent George A. Kottas, Esq., Bronx Defenders, for the maternal grandfather Indji Bessim, Esq., Assigned counsel for the child
Zachary Gaynor, Esq., NYC Assistant Corporation Counsel, petitioner Hayley M. Lichterman, Esq., Legal Aid Society, for the Respondent George A. Kottas, Esq., Bronx Defenders, for the maternal grandfather Indji Bessim, Esq., Assigned counsel for the child Gilbert A. Taylor, J.
Procedural History/Factual Findings:
On October 11, 2016, the Commissioner of the Administration for Children's Services [hereinafter "ACS"] filed a petition alleging that the Respondent Mother Laisha M. [hereinafter "the Respondent"] neglected the subject child Novelise M., in that the respondent failed to provide the subject child with proper supervision and guardianship in that:
The respondent is also a subject child of a neglect proceeding, where the Hon. Karen I. Lupuloff placed the respondent with ACS, and she currently remains placed with ACS. According to the ACS Child Protective Specialist [hereinafter "CPS"] during the pendency of the aforementioned neglect docket, the respondent was diagnosed with oppositional defiant disorder and personality disorder.
According to the CPS, the respondent was referred to mental health treatment, including individual therapy and medication management, but the respondent failed to follow up. According to CPS, the respondent was also referred for individual counseling due to her increasing erratic and violent behavior despite being engaged in Functional Family Therapy.
According to the child's maternal grandfather, on or about September 25, 2016, the respondent became violent because she wanted to leave the maternal grandfather's home, including throwing items against the walls and destroying property including a television. According to the maternal grandfather, the Respondent threatened to jump out of the sixth-floor window and he had to call to the police to stop her. According to the maternal grandfather, the Respondent was arrested and brought to Bellevue Hospital. According to the child's maternal grandfather, the respondent frequently gets angry and violent, including throwing hard objects and destroying property.
On or about October 7, 2016, the respondent admitted that she is not engaged in individual counseling.
On October 11, 2016 the Respondent was arraigned on the petition, waived reading and entered a general denial. The child was remanded and placed into the care of a non-kinship resource, and daily visits were ordered. The Respondent requested a hearing to have the children returned to her care pursuant to FCA §1028 and the matter was adjourned to October 12, 2016 for a hearing.
Testimonial Evidence:
On October 12, 2016, a hearing commenced and Petitioner's witness No.1, ACS Family Service Unit (FSU) worker testified. The matter was adjourned to October 13, 2016 for cross-examination of the FSU worker. On October 13, 2016, ACS CPS testified as Petitioner's witness #2 and the matter was adjourned to October 14, 2016 for a continued hearing. On October 14, 2016, the attorney for the child cross-examined the ACS CPS. ACS began re-direct and the matter was adjourned to October 17, 2016 for a continued hearing. On October 17, 2016, ACS re-opened direct examination of the ACS CPS and ACS reported that the child was placed with the maternal aunt. The matter was adjourned to October 18, 2016 for a continued hearing. On October 18, 2016, re-direct was completed and respondent's counsel commenced re-cross. The matter was adjourned to October 20, 2016 for a continued hearing. On October 20, 2016, cross-examination of the ACS CPS continued and the matter was adjourned to October 21, 2016 for a continued hearing. On October 21, 2016, cross-examination of the ACS CPS continued and the matter was adjourned to October 24, 2016 for a continued hearing. On October 24, 2016, cross-examination of the ACS CPS continued and the matter was adjourned to October 25, 2016 for a continued hearing. On October 25, 2016, no testimony was taken due to illness of the ACS CPS and the matter was adjourned to October 27, 2016 for a continued hearing. On October 27, 2016, all counsel consented to a Mental Health Service Imminent Risk Assessment, re-direct of the ACS CPS began and the matter was adjourned to November 1, 2016 for a continued hearing. On November 1, 2016, re-cross examination by the respondent's attorney began and the matter was adjourned to November 2, 2016 for a continued hearing. On November 2, 2016, re-cross of the ACS CPS continued and the matter was adjourned to November 3, 2016 for a continued hearing. On November 3, 2016, re-cross of the ACS CPS was completed and ACS conducted re-direct, which was also completed and the matter was adjourned to November 14, 2016 for a continued hearing.
On November 14, 2016, ACS rested and the respondent's case began. The respondent testified on direct and the matter was adjourned to November 15, 2016 for a continued hearing. On November 15, 2016, the respondent's testimony continued and the matter was adjourned to November 16, 2016 for a continued hearing. On November 16, 2016, direct examination of the respondent was completed and cross-examination commenced. The matter was adjourned to November 17, 2016 for a continued hearing. On November 17, 2016, cross-examination continued and the matter was adjourned to November 18, 2016 for a continued hearing. On November 18, 2016, no testimony was taken and the matter was adjourned to November 22, 2016 for a continued hearing. On November 22, 2016, no testimony was taken and the respondent's request for sandwich visits was denied.
The matter was adjourned to November 28, 2016 for a continued hearing. On November 28, 2016, during her continued cross-examination the Respondent appeared in court with a black bruise under her left eye. When the Respondent was asked under oath how she had sustained the injury to her eye she responded by telling an elaborate story about having been injured while paying a game of Manhunt with her cousin and friend. She testified that she had run into a pole while playing the game. On November 29, 2016, during continued cross-examination the Respondent appeared in court with an injury to and bandage on her right hand. She testified under oath that she had injured her hand by wearing a ring that was too tight fitting.
On December 1, 2016 the Respondent admitted during her testimony that she had lied under oath in explaining how she has sustained the black eye and injury to her right hand. She testified that the truth was that she was play fighting with her friends and was elbowed in the eye, causing the black eye and that she hurt her hand from punching her friend during the play fighting. When asked why she lied under oath, the Respondent answered that she thought that telling the truth would sound scarier since she had been having issues with girls in the past. The Respondent did not offer any other explanation for her perjury.
On December 2, 2016, no testimony was taken and the matter was adjourned to December 5, 2016 for a continued hearing. On December 5, 2016, cross-examination of the Respondent continued and the matter was adjourned to December 6, 2016 for a continued hearing.
On December 6, 2016 the cross examination of the Respondent by the Attorney for the Child was completed and the matter was adjourned to December7, 2016. On December 7, 2016 re-direct examination of the Respondent by her counsel began. The case was adjourned to December 8, 2016 for continued re-direct examination which took place. The testimony of the Respondent was completed on this date. During the proceedings on December 8, 2016 there was also extensive colloquy about ACS referrals to mother-child placements for the Respondent and Novelise. The matter was adjourned to December 13, 2016 for continued hearing.
On December 13, 2016, the ACS Child Welfare Specialist [hereinafter "CWS"] was called as the Respondent's witness to testify as to what placement referrals were made for the Respondent and her baby. The direct examination of the CWS by Respondent's counsel began on this date. The testimony was not complete and the case was adjourned to December 14, 2016 for continued direct examination. On December 14, 2016 the direct examination of the ACS CWS continued but again was not completed. The case was adjourned to December 15, 2016 for a continued hearing.
On December 15, 2016 all counsel and parties agreed to discontinue the testimony of the ACS CWS. On consent of counsel, the ACS CWS's testimony was stricken from the Court's record since it would not be subject to cross-examination. On December 15, 2016 all sides rested and the matter was adjourned to December 19, 2016 for all counsel to give their summations.
On December 19, 2016 all counsel gave oral summations and the court reserved decision. The case was adjourned to December 23, 2016.
Documentary Evidence:
Petitioner's #1 — Domestic Incident Report [hereinafter "DIR"] dated 5-29-16, alleging that the respondent was in a verbal dispute with her father Nathaniel, striking him in the face with her fist, causing redness, laceration and bleeding; Petitioner's #2 — DIR dated 3-15-16, alleging that the respondent punched the father Nathaniel on the shoulder with a closed fist, causing pain and swelling; Petitioner's #3 — DIR dated 3-6-16, alleging that the respondent got into a verbal dispute with her father Nathaniel M.; Petitioner's #4 — DIR dated 12-17-15, alleging that the respondent turned violent, broke a glass and pushed her little sister; Petitioner's #5 — DIR dated 6-6-15, alleging that the respondent was acting aggressive after she got into a verbal argument with her father Nathaniel M.; Petitioner's #6 — DIR dated 1-3-15, alleging that the respondent got into a verbal argument with her father Nathaniel M. because she would not listen to house rules by having her boyfriend over against her father's wishes; Petitioner's #7 — DIR dated 5-13-14, alleging that the respondent was AWOL from foster care and her father Nathaniel M. called the police due to the respondent being at his apartment; Petitioner's #8 — DIR dated 11-9-15, alleging that the respondent had a verbal argument with her father Nathaniel M. over going to school; Petitioner's #9 — DIR dated 11-21-15, alleging that the respondent got into a verbal dispute with her father Nathaniel M. that turned violent, as she assaulted him with a fork and Mr. M. sustained abrasions to his left upper forearm; Petitioner's #10 — DIR dated 12-20-15, alleging that the respondent was in a verbal dispute with R.M., where she punched and scratched R.M., causing bruises and scratches to her face. The respondent also snatched R.M.'s cell phone, threw it down the stairs, breaking it; Petitioner's #11 — DIR dated 12-21-15, alleging that the child Isaiah M. disclosed that his 15-year-old niece laid on top of him to kiss him and did not allow him to get up, that the niece also made his little sister kiss him, that the parents are aware and do not intervene; Petitioner's #12 — DIR dated 10-24-15, alleging that Nathaniel M. stabbed J.A. on her arm below the elbow with kitchen knife, suspecting that she cheated on him, and stated "I'm going to stab you in your ribs so you can see what it feels like;" Petitioner's #13 — DIR dated 11-21-15, alleging that the respondent had a verbal disagreement with her father Nathaniel M. that turned violent when she assaulted him with a fork. Mr. M. sustained abrasions to his left upper forearm; Petitioner's #14A — ACS Court report dated 11-14-16;
Petitioner's #14B- Good Shepherd Services Court Report dated 11-22-16
Petitioner's #15 — ACS Court Report dated 11-22-16; Respondent's #A — Functional Family Therapy (FFT) case notes from Children's Aid Society; and Respondent's #B — Letter from Northside dated 11-22-16. Court's #1 — MHS Imminent Risk Assessment for clinical report for Laisha M.; Court's #2 — MHS Imminent Risk Assessment clinical report for Nathaniel M. Legal Analysis:
The Respondent became pregnant with the child Novelise while she was in foster care. It is undisputed that the Respondent had a history of going AWOL from her foster care placements prior to this court issuing an order for her to have extended overnight visitation with her father Nathaniel M. The order for the extended overnight visit was made after the court became aware of the Respondent's pregnancy in an effort to stabilize her behavior and toward the end of keeping both the Respondent and her unborn child safe.
Despite case work staff from ACS knowing that the Respondent was expecting a child, the testimonial evidence elicited at this hearing did not reflect that any substantive pre-birth planning was done with the Respondent or with her father Nathaniel M. with whom she was residing. ACS's first witness CPS Ms. S. testified that the service plan for the Respondent and her father had been for them to engage in individual and family counseling. There was no specific interventions or service referrals made unique to a youth in foster care who was expecting a child. Furthermore, there were no specific case planning or Family Team Conference meetings convened with the Respondent and her father Nathaniel M. to specifically discuss the fact that a new baby would be born into the family imminently.
Studies have shown that children who are born to youth in foster care are at least twice as likely to enter foster care as the children of other young parents. Saul D. Hoffman & Rebecca A. Maynard, Kids Having Kids: Economic Costs and Social Consequences of Teen Pregnancy (2008). ACS policy promulgated in Child Safety Alert 19 offers some guidance to child protective staff related to protecting children of young people who are living in foster care. While this policy explains in-depth the legal options available to CPS related to ensure the safety of children who are parented by children in foster care, it is woefully devoid of substantive information related to best practices in social work that can be used to assist young people in foster care who are parenting infant children. Youth who are parenting while in foster care are a particularly vulnerable population who should receive the utmost assistance in both pre-birth planning and post-delivery planning. Regrettably, this did not happen in the case at bar.
Prior to the birth of the child Novelise, the Respondent and her father were enrolled in an Intensive Family Preventive Services (IFPS) program with the Children's Aid Society, which offers counseling for teens and their families using the evidence-based model of Functional Family Therapy (FFT). The service works with youth ages 11-18 and their families who are facing diverse challenges such as truancy or school problems, parent/child conflicts, substance abuse and other behavioral issues. This service is provided for usually 4-5 months over 12-16 sessions. In evidence at this hearing are the progress notes from 9 FFT sessions had with the family. The respondent participated in 8 of these sessions.
The progress notes reflect the agency's attempts to work with the Respondent and her father to effectuate behavioral change by focusing on developing communication skills, parenting styles and coping skills. During the third counseling session on July 20, 2016, the maternal grandfather conveyed to the therapist that "people kept calling him about the Respondent and her ex-girlfriend and he thought that this was putting his family in danger." Over the course of the 9 sessions, the progress notes reveal that there was less discord and hostility between the Respondent and her father. However, the maternal grandfather's statements made during the July 20th session are noteworthy because of an incident that occurred with the Respondent Mother during an agency supervised visit with the child Novelise.
On November 22, 2016, while this hearing was taking place, ACS reported that there had been an incident at the foster care agency on November 18, 2016, wherein a group of 6 teenage girls first went to the Respondent's home where she resides with the maternal grandfather seeking to confront her about an incident that took place on social media, resulting in peer conflict between the Respondent and this group. Upon learning that the Respondent was at the foster care agency visiting with the child Novelise, the group of 6 girls went to the foster care agency to confront the Respondent and the police had to be called. The incident is described in greater detail in the ACS Court Report dated 11-22-16. which is in evidence as Petitioner's #15.
During her testimony, the Respondent said that girls who went to confront her at her home and at the agency. The Respondent testified that one of the girls is affiliated with the Crips gang and that she is not a "pretty fighter." The Respondent testified that these girls saw her with the child Novelise on Snapchat, which is how they were able to locate her. The Respondent minimized this altercation and characterized it as being a prank. Yet Respondent's counsel stated in her summation that the Respondent filed a police report as a result of this incident having taken place. The Court does not credit the Respondent's testimony, as it pertains to how she described this incident. The Court concludes that both the Respondent and the child Novelise would have been in grave danger had these young ladies accessed them at the foster care agency.
During her testimony, the Respondent testified that she and her father had been through a lot over the past several years. She described her actions involving her father prior to the birth of her child as having been careless, dumb and stupid. The Respondent testified that she blamed her father for her past experiences and that she resented him for her having been in foster care. The Respondent testified that she had been doing crazy things that led her to more hurt, resentment and pain. The Respondent testified that she and her father had agreed that he would call the ambulance "when she got over heated and needed a time out." The Respondent testified that her father does not like the fact that she is gay. The Respondent testified that the family therapy that she engaged in with her father has improved their relationship. The Respondent testified that she and her father have improved their communication and validation skills and will use them to diffuse situations that may come up in the future.
The Respondent testified that she had terrible experiences when she had been in foster care in the past. The Respondent testified that she had been bullied and attacked by girls who were in foster care with her. She testified that she has a family who loves and wants her to be with them "despite whatever." The Respondent testified that ACS did not assist her in preparing for the arrival of her baby, however her family did. The Respondent testified that she and her father had bonded over her child being removed. The Respondent denied attempting to jump out of a window in her home prior to giving birth and denied that she had ever stabbed her father with a fork. The Court does not credit this testimony of the Respondent as being true. The turbulent and volatile nature of the relationship between the Respondent and her father as described in the Domestic Incident Reports that are in evidence at this hearing, coupled with the Respondent's own admission about the discord with her father discredits her testimony related to these matters.
The Respondent also testified that she wanted to sleep in the same bed with the baby Novelise. The Court highlights this point, as it is of great concern that the Respondent has very little understanding about the dangers of bed sharing with an infant child. While the Respondent is currently in a parenting skills course, she clearly has more to learn about how to safely parent her baby. During her testimony, the Respondent said that she "deserves" to be home with her family with her baby, yet her pattern of behavior while living with her father has not changed. During the course of this hearing. the Respondent admitted that the day after Thanksgiving this year, she stayed away from her father's home. The Respondent said that she had permission to stay out of the home, however the Court does not credit her testimony to be true.
While the Respondent has begun engaging in necessary services to prepare her for being a parent, the Court does not believe that she possesses the requisite protective capacity to ensure the safety of the child Novelise if she resides in her current residence with her father. The infant child Novelise does not possess any protective capacity necessary to ensure her own safety in her mother's care because of her very young age. The Court finds that the Respondent must more fully engage in her services and change her contact with people, places and things to safely be reunited with her daughter Novelise. The record made at this hearing portrays the Respondent's current living environment with her father as being chaotic, volatile and unsafe for both the Respondent and the infant child Novelise. The Respondent's father, by his own admission to the FFT therapist, believes that his family may be in danger as a result of the Respondent residing in his home. The court finds that this residence is not safe for the Respondent to be reunified in with the child Novelise at this time. This Court rejects Respondent's counsel's assertion made in closing arguments that the maternal grandfather's inclination to call 911 when things are dangerous in the home, should be viewed as a protective measure. The evidence elicited at this hearing revealed that the maternal grandfather called 911 after the dangerous or hazardous actions, events or behaviors had already occurred. The maternal grandfather's calls to 911 after the fact will not serve to protect the child Novelise from imminent danger and harm.
Whether analyzing a removal application under Family Court Act § 1027 or an application for the return of the children under Family Court Act § 1028, the court must determine whether removal is necessary to avoid imminent risk to the children's lives or health. In considering this question, the court must determine whether there is a risk of "serious harm or potential harm to the child[ren]." There must be evidence that the harm or danger is "imminent," that is, "near or impending, not merely possible" (Nicholson v. Scoppetta, 3 NY3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). The statute further requires that upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. In addition, the court must consider whether the risk can be mitigated by reasonable efforts to avoid removal, such as issuing a temporary order of protection or providing services to the family (Id. at 378—379, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Naomi R., 296 AD2d 503, 745 N.Y.S.2d 485 [2d Dept. 2002]). The Court does find that the child Novelise will be at imminent risk of life and health if returned to the Respondent in her residence with the maternal grandfather.
Conclusion:
The court finds that continued removal of the child Novelise from the respondent Laisha M. is necessary to avoid imminent risk to the child's life or health. In reaching this decision, this court has carefully weighed the evidence before it. It has reviewed the transcripts and the documents admitted into evidence. This court has considered the arguments made by all counsel and the concerns expressed by ACS counsel and the Attorney for the Child Novelise. This court finds that ACS has presented sufficient evidence to show that the child Novelise will be at imminent risk if returned to the respondent mother to reside with her in the home of Nathaniel M., the maternal grandfather of the child Novelise.
ORDERED, that the subject child Novelise M. is remanded to the Commissioner for ACS pursuant to FCA § 1028, pending a final order of disposition or further order of the court, pursuant to the following terms and conditions:
1. ACS is directed to secure a mother child placement that can accommodate both the Respondent Laisha M. and the subject child Novelise M. together within an agency-operated boarding home (maternity/mother-child blended); or in group home residence in a maternity/mother-child blended program; or in a foster boarding home where they can reside together or in a therapeutic foster boarding home where they can reside together.
2. ACS is directed to develop a comprehensive and written service plan with the Respondent Laisha M. and her father Nathaniel M. to work toward the goal of return to parent for both the Respondent and her child Novelise to ultimately return to Nathaniel M.'s care.
3. Ms. Laisha M. is ordered to stay away from and to have absolutely no contact with the young ladies who attempted to confront her at the foster care agency during the pendency of this hearing.
4. Ms. Laisha M. is ordered not to have any contact with the young ladies who attempted to confront her at the foster care agency when she was visiting the child Novelise on any types of social media (i.e., Face book, Snapchat, Instagram, Twitter, etc.).
5. Ms. Laisha M. must engage in and complete dyadic therapy with the child Novelise M.
6. Ms. Laisha M. is to engage in family therapy with her father Nathaniel M.
7. Ms. Laisha M. to engage in and successfully complete a parenting skills course.
8. Ms. Laisha M. is to engage in individual therapy to assist her in improving, emotional regulation, interpersonal functioning and impulse control.
WHEREFORE based on the foregoing, the respondent's application for return of child pursuant to FCA §1028 is denied except for as outlined above. Notify parties. Dated: Bronx, New York December 23, 2016 Hon. Gilbert A. Taylor, J.F.C.