Opinion
NA 09331/14
09-02-2015
In the Matter of a Proceeding Under Article 10 of the Family Court Act, Samuel W., Children Under Eighteen Years of Age Alleged to be Abused by v. Luemay F., Sean W., Karen R., Respondents.
Ethan Wolf, Esq., for the Administration for Children's Services Laura Matthews-Jolly, Brooklyn Defender Services, for the respondent mother Joan James, Esq., for the respondent father Adetokunbo Adelani Oseni, Esq., for the child
Ethan Wolf, Esq., for the Administration for Children's Services
Laura Matthews-Jolly, Brooklyn Defender Services, for the respondent mother
Joan James, Esq., for the respondent father
Adetokunbo Adelani Oseni, Esq., for the child
Lillian Wan, J.
The issue currently before the court is the respondent mother's motion pursuant to F.C.A. §1061 to modify the order dated May 12, 2014, which continued the remand of the infant child Samuel, to a release to the respondent mother. Upon hearing the oral arguments of counsel, and considering the motion papers before the court, including the Affirmation in Opposition submitted by ACS, the report of Delores Andrews, LMSW, dated 8/22/15 (Attorney for the Child's Exhibit A) and the report of Erin Finnerty, LMSW, dated 8/20/15 (Respondent Mother's Exhibit 1), and having considered the credible testimony of the agency case planner, Melissa Kuldip, the respondent mother's motion is granted and the subject child is released to the respondent mother under ACS supervision for the reasons set forth below.
The gravamen of the allegations against the respondent mother in this case includes an unexplained femur fracture to Samuel as well as allegations that the respondent mother choked her 11 year old daughter, Crystal. There are three respondents with regards to Samuel's femur fracture: the respondent mother, Samuel's father, and the child's caretaker. The petition as to Crystal was subsequently amended to include physical abuse allegations against Crystal's father.
The fact finding in this matter commenced on June 8, 2015 and it is next scheduled for September 25, 2015. While the issue for the court at fact finding is whether the petitioner has proven that Samuel has been abused and/or neglected by a preponderance of the evidence, the issue at this F.C.A. §1061 hearing is whether there is good cause to modify the remand order and whether such modification is in the child's best interests. The court is well aware that the respondent mother is not entitled to a hearing pursuant to F.C.A. §1028 at this juncture because she already fully participated in a F.C.A. §1027 hearing when the case was initially filed in April 2014. At that point in time, the court (J. Mulroy) found that Samuel would be at imminent risk if released to the care of the respondent mother. This was over 16 months ago and much has changed since then, regardless of the final outcome of the fact finding hearing. Samuel is currently residing in a respite non-kinship foster home, his third non-kinship foster home, and he is scheduled to be transferred from that home today because the foster parent is unwilling to continue caring for the child. It is not disputed that he has had many disruptions in placement. Samuel has been moved five times since the inception of this case. The agency currently has a plan to move Samuel back to the original foster parent by the end of today, which would make this Samuel's 6th placement move since this case was filed.
Initially, Samuel was temporarily released to his father, who began as a non-respondent in this case. The respondent mother opposed the removal of Samuel from her care and a full F.C.A. §1027 hearing was held. In the midst of the §1027 hearing, Samuel was removed from the father and remanded to ACS on April 17, 2014, upon the discovery of the femur fracture.
In determining what is in Samuel's best interests at this time, the court must still balance the risk of harm from being in his mother's care against the risk of harm that his continued removal might bring. See Nicholson v. Scopetta, 3 NY3d 357 (2004); See also Matter Alexa A.E., 103 AD3d 721 (2nd Dep't 2013). The court must also determine whether there are orders that can be put in place that will eliminate the imminent risk of harm. Nicholson, 3 NY3d at 378; Matter of David Edward D., 35 AD3d 856 (2nd Dep't 2006). Furthermore, determining whether Samuel's physical or emotional health is at risk is a fact-intensive inquiry - an inquiry that this court has made repeatedly in considering the eight motions filed by the respondent mother from December 2014 to the present seeking expanded unsupervised contact with her son. Nicholson 3 NY3d at 380. On the return date of each motion, the court has heard oral argument from counsel as well as taken sworn testimony from the agency case planner on whether there are outstanding safety concerns. No safety concerns have ever been reported, and the mother's interactions with the child have always been described as appropriate and loving. The court must also note that it is the foster care agency who unilaterally initiated the first unsupervised contact between the respondent mother and Samuel in November 2014, before it was even allowed by the court.
Over the last 9 months, this court has expanded the mother's unsupervised contact with Samuel, and as of July 29, 2015, the mother has been permitted 2 overnight visits per week in addition to the unsupervised day visits. (See Orders dated December 23, 2014, January 21, 2015, February 20, 2015, March 25, 2015, May 6, 2015, June 8, 2015, and July 29, 2015). Furthermore, on June 16, 2015, the court directed ACS and the foster care agency to hold a planning meeting to address the feasibility of a release of the child Samuel to the mother in light of the mother's cooperation with all services and the fact that Samuel was about to be moved to his 4th placement. That meeting was held on July 2, 2015, and no barriers were identified for the release of Samuel to the mother. During today's hearing on the motion, the case planner testified that she and her director continue to supervise the beginning and end of the parenting contact on Mondays, Wednesdays and Thursdays. Ms. Kuldip credibly testified that there are no safety concerns and that there is warm interaction between the mother and the child. The respondent mother always returns Samuel on time and he is always appropriately dressed and well taken care of. Ms. Kuldip has also been to the mother's home when Samuel is there, and there are no safety concerns. Ms. Kuldip has maintained regular contact with the respondent mother's therapist, and has confirmed that the respondent mother attends counseling regularly.
The reports of Rachel Kaplan, LMSW, MS Ed, the therapist who provides dyadic treatment to the mother and Samuel, are annexed to the respondent mother's motion as Exhibits A and C. In her July 10, 2015 report, Ms. Kaplan notes that since overnight visits commenced, she has observed a "distinct and positive shift in Samuel's demeanor during dyadic sessions." In addressing the multiple placements that Samuel has endured, Ms. Kaplan stated that this has had "clear, harmful effects" on the child and that his placement in multiple foster homes has made him vulnerable and that he has displayed "fear, sadness, and confusion about the sudden and pervasive changes in his routines and relationships." In her August 11, 2015 report, Ms. Kaplan noted that the mother and Samuel have attended 10 sessions with her, that extended, overnight visitation has played a "powerful role in fostering attunement, security, and joy within the parent-child relationship," and that mother-child contact should be expanded.
The report submitted by social worker Delores Andrews recommends that the mother "is ready and able to care for Samuel full time." Ms. Andrews had the opportunity to visit Samuel in the home of the mother on August 17, 2015, and noted that the child is well cared for by the mother. Ms. Andrews expressed concern that Samuel was in a respite home for over a month and was then moved to another respite home on August 13, 2015.
The court is aware that this abuse case is still mid-trial and we are still in the middle of the petitioner's direct case. That alone cannot be the reason for continuing the remand of Samuel under the present circumstances. Even if this court was to enter a finding of abuse against the respondent mother, that would not preclude the child being released to her. The court notes that it is not uncommon for children who are the subject of an abuse proceeding premised on the theory of res ipsa loquitor, to be released to the care of the parents even where an abuse finding is ultimately entered. In the seminal Court of Appeals case of Matter of Philip M., 82 NY2d 238 (1993), the court found that the petitioner had established a prima facie case of abuse in that three of the subject children had contracted a sexually transmitted disease while under the respondents' care and the respondents' explanation failed to rebut the prima facie case. The court noted that all the subject children were released to the respondents' care under Department of Social Services supervision for twelve months, during which time the parents were to seek counseling with their children. In Matter of Radames S., 112 AD3d 433 (1st Dep't 2013), the First Department upheld the Family Court's finding that the respondent mother abused her eight month old non-ambulatory daughter, including the undisputed fact that the child sustained three separate injuries, including two skull fractures and a fracture of the humerus. The Order of Disposition, also unanimously affirmed by the Appellate Division, was an order releasing the children to the respondent's care with twelve months ACS supervision.
Similarly, in Matter of Matthew O., 103 AD3d 67 (1st Dep't 2012), the First Department also affirmed the Family Court's finding of abuse against the mother, father, and babysitter in a case where a five month old child sustained seven fractures of her arms, legs and skull. In a footnote, the First Department noted that the target child and her youngest sister was initially remanded to ACS. Eight months later, the target infant's youngest sister was returned to her parents. Less than three months later, the target infant was released to the parents with specific conditions. It was additionally noted that supervision over the family ended approximately two years prior to the final Order of Disposition.
Matter of Aniyah F., 13 AD3d 529 (2nd Dep't 2004), involved a five month old diagnosed with a left subdural hematoma, a scalp hematoma, a circular scar on her forehead, two healed arm fractures, and a lip abrasion. Family Court dismissed the abuse allegations and made a finding of neglect against the respondent mother. The disposition was release of the child to the mother under twelve months ACS supervision, and the mother was directed to make provisions for appropriate child care for the children with ACS assistance. The Second Department reversed the Family Court's determination insofar as it dismissed the abuse allegations. The court found that the petitioner met its burden of proof in establishing a prima facie case of abuse under F.C.A. §1046(a)(ii) and the respondents failed to provide a satisfactory explanation for the injuries. The court noted that ACS stated that no new or further disposition was requested or required and the appellate court similarly found that no new or further disposition was appropriate under the circumstances of the case. Therefore, the Second Department chose not to remit the case back to Family Court for a further dispositional hearing.
Furthermore, Matter of T.A., 950 N.Y.S.2d 611 (Family Court New York County 2012), involved a finding of abuse against both parents based on the three month old child suffering from a fractured humerus and four broken ribs. In that case, although the twin subject children were initially removed from the parents and placed in the care of the paternal grandparents, prior to the court rendering its decision on fact finding, the court permitted the children to reside with their parents with an order of protection requiring that neither parent be with either child in the absence of the grandparents or a newly-hired nanny who stayed in the parents' home twenty four hours per day.
The petitioner's argument that the mother has not cooperated with all components of her service plan because she has failed to submit to a mental health evaluation with the Kings County Mental Health Service clinic pursuant to counsel for the petitioner's suggestion, is unavailing.Additionally, the respondent mother has previously submitted to a mental health evaluation in September 2014 at Park Slope Center for Mental Health and her attorney has opposed any further court ordered pre-fact finding mental health evaluation. The respondent has attended individual therapy regularly with a psychotherapist at Park Slope Center for Mental Health since May 2014.
Furthermore, the attorney for the child Samuel supports a release of Samuel to the mother, and has articulated at multiple court appearances that continued removal and the moving of foster homes has been detrimental to his infant client. Accordingly, the court finds that there is good cause to modify the order remanding Samuel. The subject child is hereby temporarily released to the care of the respondent mother with ACS supervision under the following terms and conditions:
(1) The respondent mother is to cooperate with weekly ACS and ECS supervision, including announced and unannounced visits;
(2) The respondent mother is to remain in the jurisdiction so that her home can be supervised by ACS;
(3) The respondent mother is to continue cooperating with individual counseling;
(4) The respondent mother is to continue cooperating with dyadic therapy with the child through the Butterflies Program at University Settlement;
(5) The respondent mother is to cooperate with a limited Temporary Order of Protection prohibiting the use of any corporal punishment on the child;
(6) The respondent mother is to cooperate with a referral for preventive services; and
(7) The respondent mother is to produce Samuel for visitation with the respondent father.
DATED: September 2, 2015
_________________________________
Hon. Lillian Wan