Opinion
XXXXX
01-28-2019
In the Matter of Kenneth R. Tahnyla S. Quadir S. Isaiah W. Javion W. Children under the Age of Eighteen Years Alleged to be Severely Abused, Abused or Neglected by v. Harold S. (Respondent Father/PLR), Alicia R. (Respondent Mother/PLR), Warren W. (Respondent Father/PLR), Respondents.
Appearances: Special Assistant Corporation Counsel Family Court Legal Services Attorney for the Petitioner Administration for Children's Services 150 Williams Street New York, New York 10038 Stephanie A. Suquet, Esq. Attorney for Subject Child, Kenneth R. Lawyers for Children 110 Lafayette Street New York, New York 10013 Catherine Wise, Esq. Attorney for the Subject Children, Quadir S. and Tahnyla S. The Legal Aid Society, Juvenile Rights Practice 60 Lafayette Street, Room 9A New York, New York 10013 Daniel Robles, Esq. Attorney for Subject Children, Isaiah W. and Javion W. 299 Broadway, Suite 1415 New York, New York 10007 Helene Bernstein, Esq. Attorney for Respondent Mother, Alicia R. 44 Court Street, Suite 905 Brooklyn, New York 11201 Jonathan Nelson, Esq. Attorney for Respondent Father, Harold S. 11 Park Place, Suite 711 New York, New York 10007 William Booth, Esq. Attorney for Respondent Father, William W. 150 Ludlow Street, Apt. 6F New York, New York 10002 Lauren Mitchell, Esq. Attorney for the Non-Respondent Mother, Equashaw W. Center for Family Representation 40 Worth Street, Suite 605 New York, New York 10013 June Callwood, Esq. Attorney for Non-Respondent Father, Darrell D. 401 Broadway, Suite 803 New York, New York 10013
Appearances:
Special Assistant Corporation Counsel
Family Court Legal Services
Attorney for the Petitioner
Administration for Children's Services
150 Williams Street
New York, New York 10038 Stephanie A. Suquet, Esq.
Attorney for Subject Child, Kenneth R. Lawyers for Children
110 Lafayette Street
New York, New York 10013 Catherine Wise, Esq.
Attorney for the Subject Children, Quadir S. and Tahnyla S.
The Legal Aid Society, Juvenile Rights Practice
60 Lafayette Street, Room 9A
New York, New York 10013 Daniel Robles, Esq.
Attorney for Subject Children, Isaiah W. and Javion W.
299 Broadway, Suite 1415
New York, New York 10007 Helene Bernstein, Esq.
Attorney for Respondent Mother, Alicia R.
44 Court Street, Suite 905
Brooklyn, New York 11201 Jonathan Nelson, Esq.
Attorney for Respondent Father, Harold S.
11 Park Place, Suite 711
New York, New York 10007 William Booth, Esq.
Attorney for Respondent Father, William W.
150 Ludlow Street, Apt. 6F
New York, New York 10002 Lauren Mitchell, Esq.
Attorney for the Non-Respondent Mother, Equashaw W.
Center for Family Representation
40 Worth Street, Suite 605
New York, New York 10013 June Callwood, Esq.
Attorney for Non-Respondent Father, Darrell D.
401 Broadway, Suite 803
New York, New York 10013 Emily M. Olshansky, J.
The questions presently before this Court pursuant to a motion filed by the Attorney for Kenneth R. (date of birth April 12, 2000) (hereinafter "Kenneth"), are whether the Administration for Children's Services (hereinafter "ACS") should be held in civil contempt for violating this Court's orders; whether ACS should be required to pay financial sanctions to Kenneth for its failures to comply with those orders; and the amount of sanctions that should be imposed, if any.
This order and decision incorporates the order and decision that originally adjudicated the Commissioner of Social Services in Contempt of Court, which was dated November 7, 2018; the order and decision that originally established the precise sum due from the Commissioner for financial sanctions, which was dated January 28, 2019 and this order and decision have been abbreviated for purposes of submission of publication.
The Parties
Respondent Harold S. ("Mr. S."), is the alleged biological father of the subject children, Quadir S. (hereinafter, "Quadir") and is the legal father of Tahnyla S. (hereinafter, "Tahnyla"). The mother of Quadir and Tahnyla is Equashaw W. Equashaw W. has been subject to prior child protective proceedings (see e.g. Docket No. NN-40174/14) and, during all relevant times, she was married to Darrell D. Alicia R. ("Ms. R.") is the biological mother of the subject children, Isaiah W. (hereinafter, "Isaiah"), Javion W. (hereinafter, "Javion"), and Kenneth R. Warren W. previously resided with Alicia R., Isaiah W., Javion W. and Kenneth R. in Virginia. Mr. W. is allegedly the biological father of Isaiah W. and a Person Legally Responsible for Javion and Kenneth. ACS alleged that Warren W. committed acts of child neglect against Isaiah W., Javion W. and Kenneth R. At the time that the instant proceeding was commenced, Mr. S. and Ms. R., married in Virginia in May 2017, were living together in New York City with the five subject children.
Prior Proceedings
On February 20, 2016, Tahnyla S. was born to Equashaw W. Harold S., Tahnyla's legal father, was present in the hospital when she was born. After Tahnyla was born, ACS commenced a child protective proceeding against Equashaw W. (Docket No. NN-034563/16), seeking a removal and remand.
On February 23, 2016, Harold S. appeared before this Court to request that Tahnyla be released to him. He indicated that he was willing to submit to drug testing and that he had adequate provisions for the baby in his home. He had no criminal or child protective history. He lived with his mother and brother.
By order dated February 23, 2016, with the consent of the Attorney for the Child, Tahnyla was temporarily released to Harold S. with ACS supervision. The following day, ACS filed an order to show cause seeking a removal and remand of Tahnyla. ACS asserted that Mr. S.'s NYCHA apartment was unsuitable because it was cluttered and contained peeling paint. On the return date of the motion, ACS continued to note the peeling paint. Mr. S. produced photographs of the apartment establishing that he had removed the clutter and cleaned up the peeling paint. Mr. S. asserted that he would undergo an assessment to determine whether he had a substance abuse problem requiring treatment. He also agreed to undergo random testing for illegal drugs and alcohol, and to cooperate with preventive services and ACS supervision.
By order dated August 25, 2016, this Court entered a finding of neglect against Equashaw W. The finding was based on the determination that the problems leading to a prior finding of neglect as to another child of the mother, not involved in the instant case, were sufficiently proximate in time to reasonably support the conclusion that the conditions that resulted in the prior finding continued to exist.
On August 29, 2016, ACS filed a neglect petition against Mr. S. The petition alleged a cause of action for neglect based on Mr. S.'s alleged alcohol and drug use (Docket No. NN-45346/16). By order dated September 21, 2016, the Court granted Mr. S. an order of filiation as to Tahnyla. By dispositional order dated November 1, 2016, against Equashaw W., this Court released Tahnyla to Mr. S. with 12 months of ACS supervision (Docket No. NN-034563/16).
By order dated April 3, 2017, this Court granted Mr. S. an Adjournment in Contemplation of Dismissal (hereinafter, "ACD"), on consent of all counsel. The ACD was for a six-month period and required that Mr. S. cooperate with ACS supervision, ensure that Tahnyla attend day-care, comply with preventive services, submit to random screenings and test negative for illegal drugs and alcohol.
On April 4, 2017, Equashaw W. gave birth to a child named Quadir S. Quadir tested positive for cocaine at birth. On April 4, 2017, ACS filed a neglect petition against Equashaw W. (Docket No. NN-08129/17). The petition alleged a cause of action based on substance abuse, derivative neglect, and the mother's failure to cooperate with the provisions of prior dispositional orders. ACS asserted that Ms. W. had evidenced a fundamental flaw in her understanding of the duties of parenthood sufficient to support the conclusion that the problems leading to the prior findings and dispositional orders continued to exist.
On April 5, 2017, Mr. S. filed paternity and custody petitions as to the child, Quadir S. (Docket Nos. P-08177-17; V-08181/17). ACS reported that Mr. S. had cooperated with the terms and conditions of the ACD. On April 13, 2017, the child, Quadir, was temporarily released to the custody of Mr. S. Mr. S. completed a drug program, providing a certification of completion on May 1, 2017. He attended an after-care program where he was tested weekly. He cooperated with preventive services and participated in parenting coaching.
When Tahnyla and Quadir were in their father's custody, they attended all medical appointments. During that period, ACS wrote that Tahnyla and Quadir "appeared well cared for...[F]ood, clothing, shelter, supervision and medical [appointments] were being provided for the children." During that time, ACS described Tahnyla as "a happy child" and indicated that Quadir was "growing and feeding well." He provided for them, ensured that Quadir had enough formula and pampers, and that the children had adequate clothing and sleeping arrangements. Mr. S.'s parenting coach reported that he was "doing well with the children." The coach described Mr. S's interaction with the children in positive terms.
On May 26, 2017, Mr. S. went to Virginia. While he was away, Quadir and Tahnyla were placed in respite care. While Mr. S. was in Virginia, he and Alicia R. were married. On June 11, 2017, Mr. S. returned to New York. They began residing together in New York City on June 14, 2017. Ms. R. had three children of her own; Isaiah, Javion and Kenneth. ACS reported that Ms. R. had no criminal or child protective history.
By order dated June 26, 2017, the ACD for Mr. S. was extended on consent until March 3, 2018. After he returned to New York, Mr. S. resumed his after-care program and on June 27, 2017, caseworkers visited the home and saw all family members. ACS noted that the children appeared well cared for and that they were receiving all necessities from Mr. S. and Alicia R.
Approximately four months later, on October 3, 2017, ACS filed petitions pursuant to Family Court Act §1022, requesting pre-petition removals and remands of the five children in the care of Mr. S. and Ms. R. (Docket Nos. NN-22392-96/17). The pre-petition applications were based on the assertion that the child, Tahnyla, was a severely and repeatedly abused child who had been admitted to the hospital and diagnosed with hypoxic brain injury and retinal hemorrhaging. The child's prognosis was "poor." By order dated October 3, 2017, the Court granted ACS's application and ordered the removal and remand of all of the children.
On October 6, 2017, ACS filed petitions against Mr. S. and Ms. R. alleging severe and repeated abuse (Docket Nos. NA-22706-10/17). The petitions alleged that on October 1, 2017, Tahnyla suffered multiple unexplained neurological injuries, including but not limited to subdural hemorrhages, retinal hemorrhages, neurological damage and hypoxic ischemic brain injury. As a result of these injuries, Tahnyla died on October 3, 2017. ACS alleged that, according to hospital personnel, the explanations provided by Mr. S. and Ms. R. were inconsistent with the nature and extent of Tahnyla's injuries. ACS alleged in the petitions that, because of the severe abuse of Tahnyla S., Mr. S. and Ms. R. demonstrated a depraved indifference to human life and that, as a result, the children, Quadir, Kenneth, Isaiah, and Javion, were also severely abused, abused and/or neglected children.
By order to show cause dated December 12, 2017, ACS moved to amend the petitions to add another respondent, Mr. W., as well as additional allegations of child maltreatment by Mr. S. and Ms. R. That motion was granted, and on February 13, 2018, ACS filed amended petitions, which alleged that Ms. R. inflicted excessive corporal punishment against her three children and that she verbally abused them. The amended petitions also alleged that Mr. W. was a person legally responsible for Ms. Rivera's two older children, the father of her youngest child, Isaiah, and that he abused or neglected the children during the time he lived with the family.
The Medical Examiner's Office took approximately 15 months to complete the autopsy of Tahnyla. According to ACS, the Medical Examiner's Office changed the assigned examiner several months after the investigation began. On October 19, 2017, ACS's Office of Placement (hereinafter, "OPA") placed Javion and Isaiah with the Graham Windham agency in a non-kinship foster home. On October 26, 2017, OPA placed Quadir with the same agency in different non-kinship foster home.
ACS failed to find a home in which to place 17-year-old Kenneth, who suffered from Traumatic Brain Injury and spinal cord injuries as a result a car accident on May 13, 2014. After Kenneth was struck by a car, he remained in a coma for an extended period and was hospitalized until October 5, 2014. Kenneth was thereafter discharged to a pediatric long-term care residential facility where he remained until June 30, 2015. He and his siblings moved to New York City in June 2017 after their mother married Mr. S.
Since the accident, Kenneth is able to stand but cannot walk independently. He requires the use of a specially constructed wheelchair. He has only limited use of his right hand, although he has full use of his left hand. His speech is slurred, soft and at times difficult to understand. His memory is impaired as a result of the accident. Kenneth also needs a multitude of individualized medical, therapeutic, and educational services. These include physical therapy, occupational therapy, visual services, medical follow-ups, trauma-informed therapy and speech and language therapy. Additionally, when Kenneth was a child he was hospitalized on multiple occasions due to pain. He was ultimately diagnosed with the Hemoglobin-C trait.
As a result of the injuries he sustained in the accident, Kenneth, without assistance and a regular schedule, is incontinent of urine, a condition described by ACS as "not toilet trained." He does, however, have the ability to use toilet facilities with assistance on a schedule.
Shortly after Kenneth's admission to the Children's Center, staff reported that Kenneth's wheelchair was broken and that he needed a new one. On December 7, 2017, ACS reported that a new wheelchair had been ordered. Thereafter, on May 4, 2018, ACS reported that Kenneth's doctor "approved" a new wheelchair. Nevertheless, Kenneth did not receive a new wheelchair prior to the time that the Court held ACS in contempt.
According to ACS, significant efforts were made to move Kenneth out of the Children's Center and into an alternate home or facility. Kenneth was referred to a foster boarding home, a medical foster boarding home, a therapeutic foster boarding home, an institutional developmentally delayed home, an Agency Operated Boarding Home for Hard to Place Children, and an Agency Operated Boarding Home for Children with Extraordinary Needs. According to ACS, due to the fact that none of the agencies had a wheelchair accessible home, ACS was unable to place Kenneth and, instead, allowed him to remain at the Children's Center for well over 12 months.
According to ACS, one foster care agency indicated that the biggest obstacle to placing Kenneth was the need to find a wheelchair accessible home. Another agency reported that housing modifications would be required before they could provide a wheelchair accessible home. Another agency reported that the obstacle to finding Kenneth a home was his difficulty in independently performing the activities of daily living. Although a Home Health Aide could have assisted Kenneth in performing these activities without constant foster family assistance, ACS never applied for a Home Health Aide or even had Kenneth receive the necessary medical evaluation to submit the application for an aide. Other agencies indicated that they would accept Kenneth and place him on their waiting lists since they had no empty beds at that time.
For example, Kenneth was accepted by New Alternatives for Children, FBH TFFC; Seaman's Society for Children and Families, FBH TFFC; Catholic Guardian Society and Home FBH TFFC and SCO Family of Services AOBH ENFC. He was, however, wait-listed by these agencies because they could not identify a resource at that time. Abbott House FBH TFFC, indicated that they had potential "foster parent(s) [who ultimately] decided that they no longer wanted Kenneth to be placed in their home. Kenneth had matched with these foster parents for several months and had matching visits with them on four occasions."
On March 15, 2018, ACS reported that Kenneth remained at the Children's Center. ACS also reported that a medical foster home had been identified. ACS explained that the obstacles to Kenneth being placed in that home were the lack of a Home Health Aide and that the application for an aide was rejected because the medical evaluation submitted was still "not up to date."
ACS reported that Kenneth attended the Maxine Green School. The Department of Education had requested a psychological and neuropsychological examination of Kenneth. ACS stated that the psychological and neuropsychological evaluations as well as speech therapy, occupational therapy and physical therapy, recommended in his 2015 IEP and other subsequent evaluations "would be addressed in school."
On March 23, 2018, ACS was directed to provide Kenneth with an updated medical examination by April 7, 2018. Additionally, ACS was directed to submit the application for a Home Health Aide by a date certain. ACS was also informed that any other obstacle preventing Kenneth from being placed in a residence, other than the Children's Center, be rectified forthwith. To date, there is no indication that ACS complied with these directives.
On May 17, 2018, the first permanency hearing for the children had been scheduled (Docket Nos. NA-22706-10/17). The hearing could not proceed due to the failure of ACS to timely serve and file a permanency report. ACS requested an adjournment. Although the Court offered ACS and the other attorneys a multitude of dates and times for the hearing (including every available 30-minute slot in this Part and the Part of Referee Susan Doherty, including June 13, 2018, June 21, 2018, June 27, 2018, July 11, 2018, July 12, 2018, July 13, 2018, July 17, 2018, July 19, 2018), a date could not be selected prior to July 30, 2018.
By order dated May 17, 2018, this Court directed that, on or before June 1, 2018, ACS supply Kenneth's attorney and other counsel with copies of every evaluation required for Kenneth, including neurological, psychological, urological, and dental. To date, there is no indication that ACS has complied with this order.
On July 30, 2018, the Court conducted the permanency hearing. Kenneth appeared in Court. He testified about the difficulties he experienced because of ACS's failure to provide him with adequate assistance. For example, he described how difficult it was to live at the Children's Center without a functioning wheelchair.
Kenneth testified that his clothing and shoes no longer fit him. He also testified about how he occasionally needed a change of clothing during family visits because of his urinary incontinence. Kenneth described how he often spent family visits sitting in a puddle of urine on his broken wheel chair, wearing clothing and shoes that did not fit him.
Kenneth, as well as other witnesses, stated that Kenneth had recently completed an IEP and received recommendations for occupational and physical therapy twice each week, as well as speech therapy three times each week. ACS never provided Kenneth with these services. Kenneth and others present also indicated that Kenneth missed seeing his brothers. His attorney asked that sibling visits be regularly scheduled at the Children's Center and that they include Kenneth and his two brothers. Despite its failure to comply with virtually every order of this Court, sibling visits were eventually scheduled.
At the end of the hearing, ACS requested that the goal for Kenneth be changed to "independent living," and that he be discharged to NYCHA housing. This notion seemed particularly risible since none of the services to assist Kenneth to live independently had even begun. For this reason, among others, the request for a goal change was not addressed. At the end of the hearing, the Court made a "no reasonable efforts" finding and continued foster care until the next permanency hearing date.
Additionally, the Court, on the record, in the presence of counsel for ACS, the parties and the other attorneys, directed that ACS complete the following essential long overdue tasks:
1. Complete, prior to September 4, 2018, every evaluation necessary for Kenneth to qualify for placement in a home (other than the Children's Center), to obtain a Home Health Aide, to qualify for OPWDD, B2H and/or any other service or program;
2. ensure that measurements are completed for Kenneth's new wheelchair, including measurements for any supplemental parts prior to August 7, 2018;
3. ensure that the new wheelchair is completed and delivered to Kenneth prior to August 30, 2018;
5. ensure that a clothing inventory for Kenneth is completed prior to August 3, 2018;
6. ensure that new clothing is provided to Kenneth and that he is provided with extra clothing to take to family visits prior to August 17, 2018;
7. provide Kenneth's Attorney with all written evaluations of Kenneth necessary to qualify for services, assistance, education, therapy and other needs, including but not limited to his neurological, psychiatric, urological and dental needs prior to September 4, 2018;
8. ensure that Kenneth receive an updated medical examination and that the application for a Home Health Aide is submitted prior to September 4, 2018;
9. ensure that, beginning by August 17, 2018, Kenneth receive physical and occupational therapy at least twice each week;
The first IEP provided by ACS directed that services, including physical, occupational, visual and speech therapy, begin by Kenneth's 15th birthday. A second report by a subsequent evaluator recommended that services, including occupational and physical therapy twice each week and speech therapy three times each week, begin by July 16, 2018. ACS failed to comply with any of these recommendations.
10. ensure that regular sibling visits are scheduled for Kenneth and his two brothers at the Children's Center;
11. ensure that all other issues preventing Kenneth from being moved in a residence (other than the Children's Center) be rectified forthwith, including the completion of an ICPC of Kenneth's aunt in Virginia, if she wishes to have Kenneth live with her, rather than placing him in an institution.
Finally, the Court ordered that ACS provide progress reports every 14 days about Kenneth's status including information about efforts made to find him a home. The Attorney for ACS was in court on July 31, 2018 and other dates when Kenneth's special physical, emotional, educational, neurological and psychological needs and ACS's failure to address those needs were discussed. ACS was provided with a copy of the July 31, 2018 order and decision. Additionally, Kenneth's Attorney served ACS with a copy of the order with Notice of Entry.
ACS Failed to Comply with Court Orders
On September 27, 2018, ACS reported that it had not complied with any provisions of the Court's July 31, 2018 order. Measurements to construct the new wheelchair for Kenneth were not completed prior to August 7, 2018. Kenneth did not receive a new wheelchair by August 30, 2018 (or by September 27, 2018). Clothing inventories were not completed by August 3, 2018.
It is unclear whether Kenneth ever received new clothing that actually fit him or extra clothing to take to family visits. In any event, these essentials were not provided by August 17, 2018. Kenneth did not receive physical or occupational therapy as ordered by August 17, 2018 (or by September 27, 2018).
Kenneth did not receive an updated urological or dental exam prior to September 4, 2018 (or by September 27, 2018). He did not receive the medical evaluation necessary to apply for a Home Health Aide or to determine whether he required a particular type of medical care or treatment or individual or group therapy, by September 27, 2018.
No applications were submitted to B2H or OPWDD. No ICPC was submitted. No effort was made to contact Kenneth's aunt in Virginia. No application was submitted for a Home Health Aide. No effort was made to address — let alone resolve - the other problems preventing Kenneth from being placed outside of the Children's Center. Fourteen-day reports were not provided.
Kenneth's Attorney was not provided with written evaluations of her client necessary for him to qualify for services, assistance, education or therapy to address his special needs, prior to September 4, 2018. The only evaluations Kenneth's Attorney received from ACS were on August 13, 2018, when she received an e-mail containing what the evaluators deemed a preliminary psychiatric evaluation of Kenneth apparently conducted on January 8, 2018 and June 21, 2018, as well as an IEP dated July 16, 2018. In addition, on September 28, 2018, Kenneth's Attorney received an e-mail containing neurological and neuropsychological evaluations apparently conducted on April 27, 2018 and May 16, 2018. ACS never explained why they delayed until August 13, 2018 to provide the Attorney for the Child with evaluations dated January 8, 2018, June 21, 2018 and July 16, 2018; nor did ACS explain why they waited until September 28, 2018 to provide evaluations dated April 27, 2018 and May 16, 2018.
The first e-mail sent by counsel for ACS, revealed that the wheelchair had not been delivered; new clothing had not been provided; neither the OPWDD, nor the B2H packets were submitted and Kenneth was not receiving speech, occupational or physical therapy. The first e-mail provided no updated information about efforts made to find Kenneth a home.
The second e-mail sent by counsel for ACS consisted of four lines. It provided that a wheelchair built for Kenneth's needs had not been constructed, let alone delivered to Kenneth. To the contrary, the e-mail provided that Kenneth was using a "regular wheelchair." In the e-mail, ACS revealed it was using a "loaner" chair and they were "conducting an assessment on how to further restore the old chair." This was simply a continuation of the status quo and an "assessment" that had led to continuing failed efforts since Kenneth started to live at the Children's Center one year ago.
The e-mail did not provide an update about efforts made to find Kenneth a home. The e-mail did not indicate whether any efforts had been made to contact the foster care agencies that had initially accepted and wait-listed Kenneth.
The e-mail did indicate, however, that once ACS informed the agencies that it had not retained a Home Health Aide and that it would not provide the financial assistance to hire a Home Health Aide or complete the renovations required to make a residence wheelchair accessible by building ramps, widening bathroom doors or providing bathing facilities assessable to Kenneth, a number of the agencies withdrew their acceptance.
On September 27, 2018, the Attorney for Kenneth, counsel for ACS, the other attorneys appeared. The Court inquired about whether ACS had fully complied with the Court's prior orders. ACS indicated that it had not.
By order to show cause dated October 1, 2018, the Attorney for Kenneth moved to hold ACS in civil contempt for the repeated failure to comply with the orders of this Court for necessary and long delayed essential services. The Attorney for Kenneth asserted that ACS's failure to comply with each provision each day that the order dated July 31, 2018 was in effect caused Kenneth to suffered actual damages in the sum of $50 per day and that this sum should be awarded to compensate him for ACS's non-compliance. The Attorney for Kenneth asserted that an investigation by the Justice Center regarding Kenneth's circumstances resulted in a substantiated report of "Category 4 neglect" against the Children's Center based on "substantial systemic problems identified during the investigation, including inadequate management, training and supervision at the facility that exposed service recipients to harm or a risk of harm."
ACS failed to submit an affirmation in opposition; however, ACS did request a hearing asserting that they intended to call witnesses. The Court inquired about the identity of the witnesses, the nature of the testimony they intended to adduce and the defense, if any, that they intended to establish. ACS indicated that they intended to call witnesses to establish the efforts they made to comply with the Court's orders. The Court emphasized that good faith efforts by ACS even if proved were not sufficient to defeat a contempt finding. Nevertheless, ACS indicated that they intended to call witnesses to mitigate any penalty the Court might choose to impose.
The Court granted the request by ACS and scheduled the hearing for October 16, 2018. The Court also continued prior orders that ACS:
1. provide the Attorney for Kenneth with evaluations necessary for Kenneth to qualify for services and assistance;
2. provide Kenneth with the updated medical examination necessary to submit the application for a Home Health Aide;
3. provide the completed application for a Home Health Aide; B2H and or OPWDD;
4. resolve forthwith all issues preventing Kenneth from being placed in an alternate setting to the Children's Center;
5. provide the Court and the attorneys with progress reports every 14 days, including information about efforts to find Kenneth a home;
6. provide Kenneth with physical therapy and occupational therapy at least twice each week;
7. provide Kenneth with regular sibling visits, invite Respondent Mother to attend supervised visits and provide Ms. R. with money for transportation.
On October 16, 2018, the date scheduled for the contempt hearing, counsel for ACS appeared and revealed that she would not be calling any witnesses or offering any other evidence on the issue of contempt or mitigating damages. Indeed, counsel for ACS conceded the contempt, asserting that the only issue remaining for the Court was a determination of the appropriate sanctions to impose. Counsel for ACS asserted that the Court lacked the authority to impose more than $250 in sanctions because "all of the Court's order had been complied with." Even if ACS were correct that compliance would obviate the need to impose financial sanctions for contempt (and it is not), ACS offered no evidence in support of this assertion.
On the date scheduled for the contempt hearing, a friend of Kenneth, Mr. S., appeared in court offering himself as a resource. Mr. S. stated he knew Kenneth since birth and that he knew the challenges that caring for Kenneth could present.
Mr. S. had been mentioned as a resource during the period immediately after Kenneth was removed, remanded and started his long-term stay at the Children's Center. Mr. S. asked to be certified as a foster parent, stating that he resides in a house with his family approximately five hours from New York City. ACS had already cleared Mr. S., his wife and his children. Kenneth, his attorney and ACS all supported the plan of having Mr. S. certified as a foster parent for Kenneth.
The Court stated on the record, in the presence of all counsel, that it was holding the Commissioner of Social Services in contempt for the chronic failure of ACS to comply with orders of this Court. Although the Court noted that many prior orders had been disregarded, it stated that it was the July 31, 2018 order that formed the basis of the contempt finding. The Court indicated that a written decision and order would be forthcoming and requested supplemental information from ACS and Kenneth's Attorney to make it possible to compute the total sum of actual damages. The Court continued the prior order.
The matter was adjourned to October 22, 2018, for a written report on Mr. S.'s home. The Court requested that the report include information about the renovations necessary before Kenneth could reside in the home; the feasibility and approximate cost of making the necessary structural changes including the construction of ramps to make the home wheelchair accessible and to provide Kenneth with access to bathroom and bathing facilities. Additionally, ACS was already under an unchallenged obligation to provide Kenneth with a Home Health Aide.
ACS failed to submit a written report with any of this information. Despite numerous subsequent court appearances, ACS never submitted a written report with any of this information.
As of the beginning of February 2019, Kenneth remained at the Children's Center. He had not moved to Mr. S.'s home. He did not have a new or even usable wheelchair. Instead, ACS left him with the wheelchair that ACS itself deemed unsuitable in December 2017. He had not received physical, occupational, speech or any other type of therapy. He had not received the evaluations that he needed and that had been ordered. Kenneth did not have a Home Health Aide. ACS had not submitted a written report about Mr. S.'s home or the remaining obstacles preventing Kenneth from being moved there. ACS never submitted a written report on the approximate cost of making the necessary changes to Mr. S's residence or whether ACS would bear financial responsibility It never submitted a written report about the availability of schools near Mr. S's home.
LEGAL ANALYSIS
The Violation of Court Orders that ACS Provide Long Overdue Essential Services and Assistance to Youth in Foster Care to Enable Him to Restore or Maintain Basic Levels of Functioning, Defeated, Impaired, Impeded and Prejudiced the Youth's Rights
Family Court Act § 1015-a provides that, in any proceeding under Family Court Act Article 10, the court may order ACS to provide services or assistance to the child and his family to facilitate the protection of the child, the rehabilitation of the family and the discharge of the child from foster care. In any order issued under Article 10, the court may include a provision requiring ACS to make periodic progress reports on the implementation of the services and assistance ordered.
Further, 18 NYCRR § 441.21 (b) (1) requires ACS to provide, arrange, coordinate and evaluate the provision of services to Kenneth and his family. To fulfill this mission, ACS is required to have regular contact with Kenneth. Further, ACS has an independent duty to ensure that Kenneth received speech therapy, occupational therapy and physical therapy.
The statute specifically provides that the violation of any order issued under Article 10 shall be subject to contempt sanctions (see also, Family Court Act § 156). Accordingly, this Court has the power and duty to address the violation of its orders by contempt where, as here, the rights of a foster child have been defeated, impaired, impeded or prejudiced (Judiciary Law §§ 753 [A] [3]; Family Court Act §§156 and 1015-a).
The Elements of Civil Contempt have been Established by Clear and Convincing Evidence
The goal of civil contempt is to vindicate the private right of a party to the litigation (McCormick v Axelrod, 59 NY2d 574 [1983]). Penalties imposed upon a party who has violated a court order are designed to compensate the injured party for loss or interference with that party's rights (Id.).
The elements necessary to support a finding of civil contempt are: (1) a lawful order of the court that was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that the party to be held in contempt had actual knowledge of the court's order; and (4) prejudice to the rights of a party or a child involved with the litigation (Judiciary Law § 753). Willfulness is not an element of civil contempt (Judiciary Law § 753[A][3]). Civil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order defeats, impairs, impedes, or prejudices the rights or remedies of a party or child (Judiciary Law § 753(A)(3); McCormick v Axelrod, 59 NY2d 574 [1983], amended, 60 NY2d 652 [1983]). The moving party has the burden of proving the elements of contempt by clear and convincing evidence (Hughes v Kameneva, 96 AD3d 845, 846 [2d Dept 2012]; El—Dehdan v El—Dehdan, 114 AD3d 4 [2d Dept 2013], affirmed, 26 NY3d 19 [2015]).
In the instant case, the Attorney for Kenneth met her burden of proof. First, the Attorney for Kenneth established that ACS failed to comply with clear, specific and unequivocal provisions of a court order in effect during the relevant time (McCormick v Axelrod, 59 NY2d at 583).
Second, the Attorney for Kenneth established that ACS had actual knowledge of the existence and contents of this Court's order. Although it was not necessary that the order be served upon ACS, the Attorney for Kenneth assured that service was effectuated (Id.).
Third, the Attorney for Kenneth showed with more than reasonable certainty that ACS disobeyed the provisions of the order (El—Dehdan v El—Dehdan, 114 AD3d 4 [2d Dept 2013], affirmed, 26 NY3d 19 [2015]). Fourth, the Attorney for Kenneth established that ACS's disobedience of the order defeated, impaired, impeded, or prejudiced Kenneth's rights (El—Dehdan v El—Dehdan, 114 AD3d 4 [2d Dept 2013], affirmed, 26 NY3d 19 [2015]; McCormick v Axelrod, 59 NY2d at 583).
Fifth, even if the Attorney for Kenneth had not established the elements of contempt, ACS admitted that it violated the Court's order and that it had no defense.
This Court ordered ACS to locate a home or other facility that was appropriate for Kenneth's needs and to coordinate his care, treatment, therapy, education and the other services that he required. By disobeying the orders entered to facilitate those objectives and by failing to provide essential services for Kenneth, ACS violated not only the orders of this Court but also applicable statutory and regulatory law. In so doing, ACS failed to exercise a minimum degree of care, denied Kenneth the aid he required and further impaired his physical, mental or emotional condition. As a result, ACS defeated, impaired, impeded, and prejudiced his rights and remedies in this pending child protective proceeding. Any Defense Predicated upon "Good Faith Efforts" or the "Inability To Comply" Fails since Disobedience by ACS is Sufficient to Establish Contempt, Regardless of Motive
ACS's sole defense was that it made "good faith efforts" to comply with court orders but was unable to do so. Any contention of "good faith efforts" or the "inability to comply" must fail since evidence of a party's act of disobedience, regardless of any motive of good faith, is sufficient to establish contempt. The mere act of disobedience by ACS is sufficient to sustain a finding (Matter of Jamel B., 53 Misc 3d 1206[a] [Family Court, Kings County 2016] [Family Court made a finding of contempt rejecting assertions by ACS of good faith efforts and inability to comply where ACS failed to comply with orders that two subject children be placed together in a foster home by a date certain]; In re Lanaya B., 25 Misc 3d 981, 990 [Family Court, Kings County 2009] [rejecting ACS's contentions that it acted in good faith; once the Family Court made an order, ACS had no discretion but to comply with that order]). Proof of willful disobedience is not required for civil contempt (In re Michael D., 30 Misc 3d 502, 514[Family Court, Bronx County 2010]; Matter of Bonnie H., 145 AD2d 830, 831 [3d Dept 1988], citing Family Ct Act § 115[a][i]; § 1013[a]).
Moreover, "inability to comply" can only be a defense to disobeying a lawful court order where the party charged with the violation is not responsible for that inability (In re Lanaya B., 25 Misc 3d 981, 990 [Family Court, Kings County 2009], citing U.S. v Swingline, Inc., 371 F Supp 37, 45 [EDNY 1974]; Matter of Terry, 151 Misc 2d 480 [Family Court, New York County 1991]). Once ACS asserted the defense of "inability to comply," the burden rested with ACS to prove such inability (El—Dehdan v El—Dehdan, 114 AD3d 4, 18 [2d Dept 2013], affirmed, 26 NY3d 19 [2015]). Here, ACS failed to introduce any evidence to even suggest — let alone prove — that the asserted "inability to comply" was not of its own making.
ACS had more than adequate time and resources to timely comply with every provision of this Court's orders, including the directive that it complete the measurements for Kenneth's wheelchair by August 7, 2018 and deliver the new wheelchair by August 30, 2018. Children's Center staff observed problems with Kenneth's wheelchair shortly after he arrived at the facility. These problems were sufficiently obvious and serious that, by December 7, 2017, Children's Center staff concluded that a new wheelchair was necessary, and ACS reported to the Court they had ordered a new one. Thereafter, according to ACS, Kenneth's doctor reached the same conclusion, and, on May 4, 2018, the doctor ordered a new wheelchair. Nevertheless, ACS failed to exercise reasonable efforts to have the construction on the wheelchair completed until long after the finding of contempt was entered. If ACS had not delayed for such a protracted period, the wheelchair would have been completed long before the court established deadlines.
Indeed, even in February 2019, ACS continued to assert that they were unable to provide Kenneth with the new wheelchair because of their inability to have the necessary repairs completed. According to ACS, they ultimately did provide Kenneth a new wheelchair, long after the above stated court-imposed deadlines. ACS contended that the new wheelchair was, thereafter, damaged in a car accident. According to ACS, the new wheelchair has not been repaired since the car accident because, despite their good faith efforts, they have been unable to repair the new chair. As a result, Kenneth is STILL using the original wheelchair that Children's Center staff found to be too small and otherwise unsuitable in December 2017.
Moreover, ACS did not request modification of any provision of the court's order, except one. With respect to that application, ACS sought an extension of time for the deadlines imposed for the delivery of the wheelchair, waiting weeks after the measurements were to be completed and only three days before the court-ordered deadline for delivery arrived. Similarly, in Lanaya B. (25 Misc 3d at 989), the Family Court made a finding of contempt against ACS where it failed to comply with court orders and did not provide any reason for their failure to seek modification of those orders at an earlier point in time. Further, in Matter of Jamel B. (53 Misc 3d 1206[a]), the Family Court made a finding of contempt where ACS failed to comply with court orders that the two subject children be placed together in a foster home by a date certain without returning to court to modify the orders or request extensions prior to the filing of a contempt motion. Any Defense Predicated upon Assertions of Compliance after the Court-Ordered Deadlines Fails, since, even if ACS had Eventually Complied, Kenneth would not been Compensated for the Loss he incurred during the Period Covered by the Order
Although ACS conceded that it failed to comply with the Court's July 30, 2018 order, ACS asserted that it eventually did comply with the provisions of that order (Matter of Michael D., 30 Misc 3d 502 [Family Court, Bronx County 2010]). Accordingly, ACS asserted that the Court is precluded from awarding sanctions of any sum greater than $250. This argument is based on the mistaken assumption that the purpose of civil contempt is to compel compliance and since ACS claims that they eventually complied (and they did not) there is no reason for imposing any greater sanction.
These assertions are fundamentally flawed. As an initial matter, ACS failed to introduce any documentary evidence or testimony establishing the dates, times, places, amounts or other details of its actions sufficient to establish that it complied with the provisions of the July 30, 2018 court order. Further, ACS is mistaken in its assertion that the purpose of imposing a civil contempt sanction is to compel compliance. The purpose of a civil contempt sanction is to compensate the injured party for loss or interference with that party's rights (McCormick v Axelrod, 59 NY2d 574 [1983]).
Here, ACS never denied that Kenneth had suffered actual damages in the amount claimed. Nor did ACS offer evidence suggesting that a different amount would more accurately reflect the harm that ACS's neglect and violations caused Kenneth. In fact, other than the rejected argument that sanctions could not exceed $250 as mentioned above, ACS remained silent in the face of the sum requested by Kenneth's attorney. ACS is Subject to Sanctions for the Violation of each Provision of the Court Order since it Committed Separate and Distinct Violations, which were not Incidental to a Single Transaction or Event
Judiciary Law § 773 provides that if a "loss or injury has been caused to a party by reason of the misconduct proved against the offender, an action maybe maintained to recover damages for the loss or injury.'' It is only where the moving party fails to show injury that the Court is precluded from ordering sanctions "exceeding the amount of the complainant's costs and expenses, and $250 in addition thereto." Where, as here, loss and injury has been shown, a fact that ACS never denied, "a fine may be imposed."
In any event, here, the evidence establishes that Kenneth sustained actual loss or injury. Accordingly, the Court is not constrained by the statutory language to comply with the provisions setting $250 as the maximum sum that may be imposed for violation of a court order.
Sanctions may be Imposed for Each Day that ACS Committed Separate and Distinct Violations of a Court Order
A party who commits separate and distinct violations of a court order, not incidental to a single transaction or event, is subject to sanctions for civil contempt for each violation (see Walker v Walker, 86 NY2d 624 [1995] [Family Court is authorized to impose consecutive commitments for separate, multiple violations of a one year order of protection; the court is not precluded from imposing six-month jail commitments for each separate and distinct violation of an order, to be served consecutively]; Matter of Jamel B., 53 Misc 3d 1206(A) [where ACS violated three separate orders to place the children together, the court found the appropriate remedy to be a fine of $250.00 per child per order]; see also People v State of New York District Attorney Investigators PBA, 231 AD2d 445 [1st Dept 1996] [defendants were held in criminal contempt for multiple acts of disobedience of a consent judgment, consisting of 44 fraudulent telephone solicitations over a span of three years and each of the multiple acts of disobedience allowed for separate fines to be imposed]; Matter of HPD v Deka Realty Corp., 208 AD2d 37 [2d Dept 1995]).
Further, separate penalties for civil contempt may be imposed on a daily basis where the rights of a party or the child were diminished on a daily basis (Matter of Lanaya B., 25 Misc 3d 981 [Family Court, Kings County 2009] [Family Court imposed sanctions for each day ACS failed to comply with court orders directing that the child be placed in a specific kinship foster home]; see also Weissman v Weissman, 131 AD3d 529 [2d Dept 2015] [former spouse was entitled to the statutory maximum of $250 for each of the 11 acts of disobedience by the other spouse for violating the provision of the stipulation of settlement]; Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 NY2d 233, 239 [1987]; McCain v Dinkins, 84 NY2d 216, 227 [1994] [upholding the imposition of contempt penalties for each night New York City was in violation of court orders precluding the housing of homeless families at welfare office emergency assistance units ("EAU") and affirming the trial court's imposition of sanctions payable to those homeless families who were forced to spend their nights at an EAU]).
Having reached this conclusion, this Court would also emphasize that ACS violated many more than simply the one court order dated July 31, 2018. In addition, ACS failed to comply with a directive issued on March 23, 2018 [directing ACS to provide Kenneth with an updated medical exam by April 7, 2018, to submit the application for a Home Health Aide and rectify any other obstacle preventing Kenneth from being placed in a residence other than the Children's Center]; a directive issued on May 17, 2018 [directing that, by June 1, 2018, ACS supply copies of every evaluation required for Kenneth, including neurological, psychological, urological, and dental evaluations]; and the order issued on September 27, 2018 [reiterating the provisions of the July 31, 2018 order]).
Additionally, ACS violated orders issued after the finding of contempt was made, including an order made on October 16, 2018 [directing ACS to comply with prior orders that ACS provide copies of evaluations for Kenneth to qualify for services and assistance for his special neurological, psychiatric, urological and dental and other needs; that ACS ensure that an updated medical examination was conducted; that ACS re-submit the application for Kenneth's personal care services; that ACS rectify any other problems preventing Kenneth from being placed in a residence other than the Children's Center; that ACS provide progress reports every 14 days; that ACS provide Kenneth with physical therapy and occupational therapy; that ACS provide Kenneth's mother with money for transportation to and from visits, evaluations of Kenneth and other appointments] and the other order issued on October 16, 2018 [directing that ACS submit a report by October 22, 2018, on the home of the kinship resource, the renovations that would be required before Kenneth could reside there, including the feasibility and approximate cost of making the necessary structural changes, information regarding the construction of the ramps necessary to make the home wheelchair accessible, the widening of the bathroom and other doors, the installing of a stand-alone shower in the bathroom on the first floor and or the installation of an escalator to enable Kenneth to travel between the first and second floors of the residence and describing the availability of suitable schools near the kinship resource's home]).
Kenneth Suffered as the Result of ACS's Repeated Failure to Comply with Orders of this Court
In this contempt proceeding, brought by the Attorney for Kenneth alleging that ACS systemically and continuously failed to abide by this Court's July 30, 2018 order, not to mention the orders dated March 23, 2018, May 17, 2018 and September 27, 2018, there is clear and convincing evidence establishing that, from July 31, 2018 until the present, ACS has failed to comply with the provisions of this Court's orders.
The record here is clear: Kenneth suffered as the result of ACS's repeated failure to comply with orders of this Court. He was forced to remain at the Children's Center from October 3, 2017 until the present, far longer than his peers and his own siblings who left within a matter of days. He was required to remain an isolated long-term resident in this institutional setting when he could have been placed in a special needs foster home or the home of a family friend who wanted him. He was also denied early, regular and ongoing visitation and contact with his siblings who were separated from him and from one another. He was denied the assistance of a Home Health Aide who could have helped him as he faced the challenges presented by the activities of daily living.
During this period, ACS also denied Kenneth a suitable wheelchair or an updated medical examination, as well as neurological, psychological, psychosocial, urological and dental services. ACS also failed to apply for services from B2H or OPWDD. Further, ACS failed to provide Kenneth essential trauma-based therapy or clothing or shoes that fit. Kenneth was also denied services, which, according to his IEP, should have started by his 15th birthday, including physical, occupational, visual and speech therapy.
As one of the individuals who evaluated Kenneth eventually reported, Kenneth experienced multiple difficulties as a result his Traumatic Brain and Spinal Cord Injuries. These difficulties directly and negatively impacted on his intellectual, social, educational, emotional and behavioral functioning. At the time that Kenneth was placed in the Children's Center he suffered from diminished functioning which was compounded by his need to adjust to his continually changing environment. The challenges Kenneth faced included attempting to adjust to his mother's new marriage, adapting to her move of the family from Virginia to New York, dealing with the sudden death of his young step-sister, adjusting to his sudden removal from his home, facing his separation from his siblings and living without family or friends at the Children's Center. As a result of ACS's failure to comply with its statutory and regulatory obligations and the orders of this Court, Kenneth was forced to face these profoundly stressful life events without the help of the therapy, services or support that ASC was required to provide.
The impact of the denial of these services must be considered in light of Kenneth's age, stage of development and the immediacy of his need for treatment, therapy, rehabilitation, support and care. When Kenneth was first placed in the Children's Center, he was a teen struggling to recover from his profound injuries and reacquire some of the skills, knowledge and abilities he had prior to the accident. It does not require expert testimony to understand that time was of the essence. The fact that Kenneth did not receive physical therapy, occupational therapy, speech therapy, visual assistance, trauma-based therapy or an appropriate education — not to mention any of the other court-ordered services — with the frequency prescribed, may have a permanent impact upon his development. Critical services withheld from a 17-year-old, only three years after he suffered devastating injuries to his brain and spinal cord, cannot necessarily be made up at some future point in time when it is less expensive and more convenient for the adults responsible for his care.
WHEREFORE, it is hereby
ORDERED, that this Court holds the Commissioner of Social Services in civil contempt of court for the failure to comply with the provisions of this Court's order dated July 31, 2018; and it is further
After a hearing, this Court concluded that clear and convincing evidence established that ACS failed to comply with numerous provisions of clear and unequivocal provisions of the July 31, 2018 court order about which it had actual notice. As such, this Court, having heard the arguments of the Attorney for Kenneth and the Commissioner of Social Services and having reviewed all of the documentation and other evidence submitted, finds the Commissioner of Social Services in contempt of Court, and fines are imposed in the amount of $50.00 per day for each violation, as follows:
1. ACS is directed to complete and submit the ICPC for Kenneth's aunt Diana in Virginia if she agrees with the plan to keep Kenneth at her home. Two months later, ACS reported that, despite the Court's July 30, 2018 order, ACS had not initiated the Court-ordered ICPC. Counsel for ACS did not know if Kenneth's aunt was even contacted since the entry of the order to determine whether she would agree to keep Kenneth at home. Nevertheless, since the Court failed to set a date by which this provision was to be satisfied, no fine is imposed.
2. ACS is directed to ensure the completion of every necessary evaluation of Kenneth in order for him to qualify for OPWDD, placement in a foster home, a Home Health Aide and any other service or program he qualifies for by September 4, 2018. Since ACS failed to comply with the provisions of this Court's orders, from September 4, 2018 until October 1, 2018, when the Attorney for Kenneth moved to hold the Commissioner in contempt, the Court enters a finding of contempt and imposes a fine of $50 per day, 26 times $50 or $1,300.
3. ACS is directed to provide the Attorney for Kenneth and other counsel with copies of all the evaluations of Kenneth, including but not limited to neurological, psychiatric, urological and dental prior to September 4, 2018. Since ACS failed to fully comply with this provision of this Court's order, from September 4, 2018 until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 26 times $50 or $1,300.
4. ACS is directed to ensure that Kenneth has an updated medical examination by the end of the week the order was entered ( e. g., August 4, 2018), so that he can be placed into an already identified foster home. ACS shall also submit the application for a Home Health Aide by September 4, 2018. Since ACS failed to comply with the provisions of this Court's order for a medical examination by the end of that week from August 4, 2018 until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 57 times $50, or $2850. Since ACS failed to comply with the provisions of this Court's order for the submission of the application for a Home Heath Aide from September 4, 2018 until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 26 times $50, or $1,300.
5. ACS is directed to ensure that measurements for Kenneth's new wheelchair shall be taken by August 7, 2018, including any necessary supplemental pieces and the chair shall be completed and paid for by ACS and delivered to Kenneth by August 30, 2018. Since ACS failed to comply with the first part of this provision of the Court's order, from August 7, 2018 (measurements) until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 54 times 50 or $2,700. Since ACS failed to comply with the second part of this provision, from August 30, 2018 (delivery) until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 31 times $50 or $1,550.
6. ACS is directed to ensure that a clothing inventory is completed by August 3, 2018, that new clothing is provided by August 17, 2018 and that Kenneth is provided with an extra set of clothing to take to family visits. No clothing inventory was completed by August 3, 2018. New clothing was not provided by August 17, 2018. Since ACS failed to comply with the first part of this provision from August 3, 2018 until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 57 times 50 or $2,850. Since ACS failed to comply with the second part of this provision from August 17, 2018 until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 44 times $50, or $2,200.
7. ACS is directed to ensure that Kenneth is provided with physical and occupational therapy at least twice each week. These services shall start no later than August 17, 2018. Since ACS failed to comply with this provision from August 17, 2018 until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 per day, 44 times $50, or $2,200.
8. ACS is directed to provide the court and the attorneys with a progress report every 14 days. This report shall include an update about the efforts made on behalf of Kenneth to find a foster home. ACS never provided a 14-day report. Since ACS failed to comply with the provisions of this Court's order for reports every 14 days beginning on August 13, 2018 (when the first 14-day report was due) until October 1, 2018, the Court enters a finding of contempt and imposes a fine of $50 for each of the four 14-day reports that were not submitted or four reports times $50, or $200.
ORDERED, that the Commissioner of Social Services shall purchase a United States savings bond or other obligation of the government of the United States, the government of the State of New York, or the government of the City of New York in the name of Kenneth R. or Lawyers for Children in Trust for Kenneth R., in an amount of $17,s150. The government bond or other obligation is to mature when Kenneth reaches 21 years of age, and may not be redeemed prior to that time, unless by order of this Court. The Attorney for Kenneth shall retain custody of the government bond or other obligation until Kenneth reaches his 21st birthday; and it is further
ORDERED, that the Commissioner of Social Services shall deliver the government bond or other obligation to the Attorney for Kenneth, no later than January 30, 2019, and file notice of such delivery with this Court. Finally, if ACS fails to comply with this order, the Attorney for Kenneth is directed to immediately file another motion for contempt; and it is further
ORDERED; that if the Attorney for Kenneth is unable to perform this duty, Lawyers for Children shall assign substitute counsel to assume this obligation and Kenneth and his Attorney or a substitute attorney from Lawyers for Children shall maintain ongoing contact with one another for at least the next three years; and it is further
ORDERED, that all prior orders are continued including each and every provisions of the order dated July 31, 2018 with the exception of the provision regarding the completion the ICPC, which is purportedly pending at this time. ENTER:
_____/s/________________________
Hon. Emily M. Olshansky, J.F.C.