Opinion
XXXX
12-10-2010
In the Matter of O, N, W, and H, Children Under the Age of Eighteen Years Alleged to be Neglected by Ebony M., Respondent.
Rayaaz N. Khan, Esq. for the respondent mother Lenore Lanzilotta, Esq. for the Administration for Children's Services Alison Reisner, Esq. attorney for the children O, N, and W Andrea S. Ogle, Esq. attorney for child H.
Rayaaz N. Khan, Esq. for the respondent mother
Lenore Lanzilotta, Esq. for the Administration for Children's Services
Alison Reisner, Esq. attorney for the children O, N, and W
Andrea S. Ogle, Esq. attorney for child H.
Edwina G. Richardson-Mendelson, J.
By motion filed on July 29, 2010, respondent-mother Ebony M. seeks to vacate the findings of neglect entered against her and seeks to dismiss the petitions.
These petitions result from a series of events spanning over three years. The respondent first became known to the Administration for Children's Services (hereinafter "ACS") on February 2, 2006. On March 9, 2007, ACS filed the first neglect petition against the respondent under Article Ten of the Family Court Act after her newborn tested positive for cocaine and opiates. In the petition, ACS alleged that the respondent abused illegal drugs and was not enrolled or participating in a drug rehabilitation program. In addition, the petition indicates that the respondent admitted to an ACS caseworker that she used crack while she was seven months' pregnant.
On or about March 9, 2007, the subject children O (then age 12), N (then age 10), W (then age 7), and H (then age 7 days), were remanded to the Commissioner of ACS. The court also issued a temporary order of protection limiting the respondent's contact with the subject children to agency supervised visits only, and no contact if the respondent was under the influence of illegal substances.
On April 4, 2007, the respondent admitted the allegations in the petition and the court entered findings of neglect. Ms. M. was accepted into Family Treatment Court (hereinafter "FTC") on or about April 4, 2007.
About four months later, on July 24, 2007, the respondent had accumulated 103 clean days and her children were returned to her on the condition that she 1) cooperate with FTC, 2) continue to test negative, 3) attend a substance abuse program, 4) cooperate with any reasonable ACS referrals, and 5) comply with the order of protection prohibiting any contact with the subject children if she is under the influence of drugs or alcohol.
Soon thereafter, Ms. M. violated some of the aforementioned conditions. On August 14, 2007, the FTC staff reported that the respondent was on the verge of losing her clean time because she had not attended a substance program since August 2, 2007. Again on September 18, 2007, the respondent failed to attend her program, was reported to have two un-excused absences, and did not get tested during the week of August 27, 2007. Consequently, the respondent lost all of her accumulated clean time.
Throughout November 2007, the respondent continued to violate the conditions of the children's release to her. On or about November 19, 2007, a report was called-in to the State Central Register with allegations that the subject children were left alone and unattended at home while the respondent was out using crack cocaine. On or about the evening of November 19, 2007, ACS caseworker Tonya Howard visited the respondent's home. Ms. Howard discovered that the subject children were home alone and unattended since one o'clock that morning. The children reported to Ms. Howard that their mother would leave them for two or three days at a time and that they believed that the respondent was again using crack cocaine, since this was her usual pattern. In addition, the respondent did not attend her program from November 13, 2007 to November 27, 2007 and did not appear for drug testing on November 14, 2007 or contact FTC about her whereabouts.
As a result of all the above violations, particularly the ACS caseworker's findings on November 19, 2007, ACS used their emergency powers to remove the children and on November 20, 2007, the court again remanded the children.
Throughout the months that followed, the respondent continuously accumulated clean days only to lose them because she relapsed. As of April 22, 2008, the respondent had accumulated 86 clean days but lost this time on April 28, 2008 when she admitted continued use of crack cocaine. On July 10, 2008, the respondent tested positive for cocaine and again lost her accumulated clean time. On July 22, 2008, on the consent of the parties, the court entered an order of disposition placing the subject children with the Commissioner of ACS and requiring the respondent to complete parenting skills, individual counseling, and a substance abuse program, and to cooperate with FTC. A final order of protection was entered forbidding the respondent from being around the children while under the influence of illegal drugs or alcohol.
Thereafter, the respondent again admitted that on or about August 4, 2008 she used crack cocaine. Finally, in September 2008, the respondent entered an in-patient drug rehabilitation program and continued to receive both in-patient and out-patient drug rehabilitative services until February 2010. The respondent was successful in her program. Between January 5, 2010 and May 18, 2010, all four subject children were released to her. Having achieved 646 "clean" days on June 15, 2010, the respondent "graduated" from Family Treatment Court and a final discharge was ordered.
The respondent now moves to vacate the findings of neglect pursuant to Family Court Act §1061, arguing that the findings inhibit the respondent's ability to obtain employment in her chosen field of geriatric care and that this constitutes good cause for vacatur under §1061. The respondent also argues that she has remedied the problem that caused the petitions to be filed and, therefore, pursuant to Family Court Act §1051(c), the petitions should be dismissed because the aid of the court is not required.
The petitioner argues that although Family Court Act §1061 allows the court to vacate a finding of neglect where good cause is shown, historically the standard for finding good cause has always been a relatively high one, involving serious violations of due process rights were the finding not vacated. The petitioner also argues that the respondent may not bring any motion in this matter because these proceedings concluded on June 15, 2010 and there is no "open order" to vacate. The petitioner further argues that dismissal under Family Court Act §1051(c) — because the aid of the court is not required — is inappropriate because §1051(c) contemplates such dismissal only before a finding is made.
Three of the children, O, N, and W, through their attorney, support the respondent's motion, arguing that there is authority for finding good cause even where there has not been a violation of due process, that the stigma created by the findings will affect the respondent in future legal matters, providing the court with a sufficient basis to continue it's jurisdiction over the matter, and that because the respondent has successfully addressed her drug problem, the public interest in preserving the findings no longer exists.
The child H, through her attorney, opposes the motion arguing that dismissal under Family Court Act §1051(c), because the aid of the court is not required, is inappropriate after the case was closed on June 15, 2010, and that the respondent failed to demonstrate the requisite good cause to vacate the findings.
The court denies the motion.
Discussion
The respondent-mother contends that her ability to obtain employment is a matter that should be considered by the court because her ability to work is clearly in the subject children's best interest and, therefore, provides the "good cause" necessary to vacate the findings of neglect.
Although this court has the authority to vacate its findings pursuant to Family Court Act §1061, the court finds that the respondent has not shown good cause. The court finds that a showing of good cause, in this context, means a showing that the findings were incorrectly or unfairly made, or that the court's failure to vacate the findings would have a significant effect on the children's best interest.
No one has argued that the findings were incorrectly or unfairly made. The findings resulted from the respondent's own admission, after she was duly allocuted.
The respondent's inability to obtain employment in her chosen field does not have a significant adverse effect on the children's best interest. The respondent's desired occupation is not the only occupation she can pursue. Certainly, the respondent's happiness at being employed in her chosen field would be beneficial to her children, but it cannot be reasonably argued that her inability to obtain such employment is detrimental to her children.
More importantly, the court is not willing to pretend that the respondent's long history of substance abuse and neglect of her children did not happen. Vacating the findings would be an act of dishonesty by the court.
Although the court commends the respondent for successfully completing the Family Treatment Court program, the court cannot turn a blind eye to the respondent's past transgressions and continual relapses. The neglectful treatment of the subject children at the hands of the respondent was a reality. The respondent must live with the consequences of her actions.
Even though the respondent's inability to obtain employment in her chosen field is a valid concern, the court finds that the respondent is merely speculating that she will be unable to obtain that employment. The respondent has not shown that the neglect findings have actually prevented her from working in her chosen field.
In any event, the respondent's name will remain in the State Central Register of Child Abuse and Maltreatment and potential employers will be able to obtain State Central Register reports unless, at some future date, the respondent's record is expunged.
The petitioner asserts that the Family Court does not have the discretionary authority to dismiss a case three years after the court entered a finding of neglect. The petitioner argues that the respondent should have made a motion to dismiss the petition in April of 2007, when the findings were made.
The Family Court's authority to vacate any order issued in the course of a proceeding under Article 10, after due notice is given and good cause shown, is not time-limited under Family Court Act §1061. Furthermore, the Family Court has continuing jurisdiction over child protective proceedings and the Family Court may vacate any order, including a fact-finding or a dispositional order, made in the course of an article 10 proceeding.
See In re Shinice H., 194 AD2d 444 (NY App. Div. 1st Dep't 1993), which states that "section 1061 express a strong legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child's welfare." See also, In re Chendo O., 193 AD2d 1083 (NY App. Div. 4th Dep't 1993), where the court noted that "§1061 authorizes the court to modify a prior fact-finding order based on a showing of good cause thus promoting the best interest of the child.
See In re Shinice H., 194 AD2d 444 (NY App. Div. 1st Dep't 1993), where the appellate division found that the family court may set aside, modify, or vacate any order issued in the course of a child protective proceeding.
Although the court has the authority to vacate the neglect findings, for the reasons stated herein it declines to do so.
With respect to the respondent's argument that the petition should be dismissed because the aid of the court is not required, it is well established that Family Court Act §1051(c) applies only to pre-fact-finding orders. See In re Eustace, 76 AD3d 428 (NY App. Div. 3d Dep't 2010), In re Karla B., 262 AD2d 137 (NY App. Div. 2d Dep't 1999), In re Kirk, 60 AD3d 427 (NY App. Div. 3d Dep't 2009), and Matter of Baby W., 245 AD2d 830 (NY App. Div. 3d Dep't 1997).
The motion is denied.
This constitutes the decision and order of the court.
ENTER:
__________________________________________
EDWINA G. RICHARDSON-MENDELSON
Judge of the Family Court
Dated: Jamaica, New York
December 10, 2010