Opinion
NA-XXXXX/XX
09-02-2020
In the Matter of SARAHI O., Isaac O., Abraham O., Yadiel A., Children Under Eighteen Years of Age Alleged to be Abused and Neglected by v. JOSEFINA DL. & Pablo O., Respondents.
Ms. Jennifer Howell, Esq. for the petitioner, the Administration for Children's Services (ACS); Ms. Melissa R. Perez, Esq. for the respondent mother, Josefina DL.; Ms. Shlomit R. Cohen, Esq. of the Bronx Defenders for the respondent father, Pablo O.;Ms. Alison B. Holstein, Esq. of the Legal Aid Society for the children.
Ms. Jennifer Howell, Esq. for the petitioner, the Administration for Children's Services (ACS);
Ms. Melissa R. Perez, Esq. for the respondent mother, Josefina DL.; Ms. Shlomit R. Cohen, Esq. of the Bronx Defenders for the respondent father, Pablo O.;Ms. Alison B. Holstein, Esq. of the Legal Aid Society for the children.
Tracey A. Bing, J.
Present before the Court are motions filed by both respondents to modify an order of disposition, pursuant to Family Court Act (FCA) § 1061. Both motions seek a modification of the respondents' order of disposition, entered on April 23, 2019, to a release of three of the children to the respondents and for the Court to grant a suspended judgment pursuant to FCA §§ 1052 & 1053. Ms. Melissa R. Perez, Esq. represents the respondent mother, Josefina DL. Ms. Shlomit R. Cohen, Esq. of the Bronx Defenders represents the respondent father, Pablo O. Ms. Alison B. Holstein, Esq. of the Legal Aid Society represents all four children. Ms. Jennifer Howell, Esq. represents the petitioner, the Administration for Children's Services (ACS).
The children subject to the proceeding are Isaac O., three years old (d.o.b. xx/xx/xx); Abraham O., five years old (d.o.b. xx/xx/xx); Sarahi O., seven years old (d.o.b. xx/xx/xx); and Yadiel A., eleven years old (d.o.b. xx/xx/xx).
The motions and response papers were filed as follows: Ms. Cohen filed the motion on behalf of the respondent father on November 8, 2019. Ms. Holstein answered in support of the respondent father's motion on November 19, 2019. Ms. Perez answered in support of the respondent father's motion on November 21, 2019 . Ms. Howell answered opposing the respondent father's motion on November 21, 2019. Ms. Cohen filed a response to the agency's opposition on November 27, 2019. Ms. Perez filed the motion on behalf of the respondent mother on December 10, 2019. Ms. Howell answered opposing the respondent mother's motion on December 16, 2019. No other pleadings were filed, and the motions have been marked submitted.
Ms. Perez officially withdrew her answer in support of the respondent father's motion on February 24, 2020. The Court does not consider that pleading in the present decision and order. In lieu of her answer in support of the respondent father's motion, the Court granted Ms. Perez until December 9, 2019 to file a motion on behalf of her client. On December 9, 2019, Ms. Perez requested an extension to file her motion until December 10, 2019. The extension was granted, with the Court also providing ACS an extension to file an answer from December 13, 2019 to December 16, 2019.
The Court considers the following papers presented in support of Counsels' motions, answers, and replies:
A. Affirmations:
Affirmation by Ms. Cohen in support of the respondent father's motion.
Affirmation by Ms. Holstein in support of the respondent father's motion.
Affirmation by Ms. Howell opposing the respondent father's motion.
Affirmation by Ms. Cohen replying to the agency's opposition on motion.
Affirmation by Ms. Perez in support of the mother's motion.
Affirmation by Ms. Howell opposing the respondent mother's motion.
B. Exhibits:
Exhibits under the respondent father's motion:
A. Respondent father's affidavit in support of his motion.
B. Signed letter by Ms. Cheryl D., teacher at XXX. The letter is not dated or notarized.
C. Letter dated May 17, 2018, signed by Dr. Carmen M. G-A, children's pediatrician. The letter is not notarized.
D. Ms. Holstein's signed order to show cause dated March 15, 2019, seeking to compel ACS to provide particularized expert disclosure pursuant to CPLR § 3101[d], to preclude the testimony of Dr. Bruce G., and to compel ACS to provide an offer of proof as to certain paragraphs within the petition. This exhibit included subpoenaed medical records.
E. EMS records subpoenaed for trial.
F. Treatment update report from Montefiore, dated February 14, 2019 and signed by Janelle B., LCSW, and Anne M., PhD.
G. Court report from Good Shepard Services dated August 24, 2018.
H. Both respondent's certificates for CPR and First Aid training.
I. Both respondent's certificates for parenting courses.
J. Letter dated October 26, 2018 from XX Counseling Services, signed by Luis L., LMHC, indicating that the respondent father completed an anger management course.
K. Treatment update report from Montefiore, dated September 4, 2019 and signed by Janelle B., LCSW.
Exhibits under Ms. Howell's opposition to the respondent father's motion:
A. Copy of the original petition against the respondents.
B. Court orders dated May 10, 2018, directing the temporary removal of the children upon the filing of the petition.
C. Temporary full stay away order of protection issued against the respondent mother on May 10, 2018.
D. Court order dated May 17, 2018, granting the respondents individualized supervised visits with their children.
E. Court order of fact-finding against the respondent father dated November 14, 2018.
F. Court order of fact-finding against the respondent mother dated April 17, 2019.
G. Court order of disposition dated April 23, 2019.
H. Photographs of the child Abraham depicting his injured/burned chest.
Exhibits under the respondent mother's motion:
A. Respondent mother's affidavit in support of her motion.
B. Court report from Good Shepard Services dated November 27, 2019.
Exhibits under Ms. Howell's opposition to the respondent mother's motion:
A. Copy of the original petition against the respondents.
B. Court orders dated May 10, 2018, directing the temporary removal of the children upon the filing of the petition.
C. Temporary full stay away order of protection issued against the respondent mother on May 10, 2018.
D. Court order dated May 17, 2018, granting the respondents individualized supervised visits with their children.
E. Court order of fact-finding against the respondent mother dated April 17, 2019.
F. Court order of fact-finding against the respondent father dated November 14, 2018.
G. Court order of disposition dated April 23, 2019.
H. Photographs of the child Abraham depicting his injured/burned chest.
The Court credits the evidence presented to the Court with the exception of the undated letter, Respondent father's Exhibit B. It does not provide a time frame for the observations provided in the letter. Hearsay is permissible as per the Family Court Act. The Court has the discretion to determine the weight of the evidence presented.
The motions were scheduled for trial on April 16, 2020. Due to the COVID-19 pandemic, Governor Cuomo issued Executive Orders tolling statutory timeframes and Judge Marks issued Administrative Orders Number 78/20 and 85/20. The Court conferenced the case with all counsels on April 27, 2020. The Court withdrew its request for testimony by the respondents. The Court informed counsels during the conference that it would issue its decision based on the pleadings filed by counsels. Counsels did not oppose the Court's decision to enter a ruling based on the submission of the motions and evidence without testimony. This decision is submitted during the COVID-19 pandemic pursuant to the Governor's Executive Orders and New York City Administrative Judge Lawrence Marks Administrative Order No.78/20 dated March 22, 2020.
Procedural History
On May 10, 2018, the petitioner filed the underlying petitions alleging that the respondents abused and neglected the subject children. The Honorable Monica Shulman, Bronx County Family Court, presided over the matter from its inception until January 3, 2019 when the matter was referred to the Honorable Tracey Bing.
Judge Shulman ordered the removal of the children from the respondents' care on May 10, 2018. On May 17, 2018, the children were placed in the paternal grandfather's home under remand status. On November 14, 2018, the respondent father submitted to the jurisdiction of the Court under FCA § 1051 [a]. The Court entered a finding of neglect on consent of the respondent without admission against the respondent father. An order of disposition against the respondent father was not entered. On December 28, 2018, Ms. Holstein filed an order to show cause seeking the release of her clients to the respondents, under FCA § 1028. The order to show cause was signed by the Honorable Lynn M. Leopold. It was adjourned to January 3, 2019, the first date that the case was scheduled before the Honorable Tracey Bing.
This jurist heard a protracted FCA § 1028 hearing that included testimony from an expert LSCW witness from the GABI Program at Montefiore Hospital. The Court simultaneously heard the FCA § 1028 hearing with the fact-finding hearing on the respondent mother's case. On April 17, 2019, the respondent mother entered an admission to portions of the petition, as redacted in the Court's order of fact-finding dated April 17, 2019. The FCA § 1028 application was also settled during the court appearance. The Court entered a neglect finding against the respondent mother. On the next Court appearance, all parties agreed to an order on disposition entered on April 23, 2019 . The order of disposition placed the parties' three children in common (O. children) with the paternal grandfather. The terms of the disposition order included the following:
The April 23, 2019 order of disposition was entered only for the children Sarahi, Isaac and Abraham. The disposition for the child Yadiel was entered on January 29, 2020, under a custody order in favor of his father with visitation for the respondent mother.
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The children are placed in the custody of the Commissioner of Social Services of Bronx County, to reside in foster care with the paternal grandfather, Mr. Pablo O. until the completion of the next permanency hearing, scheduled for the date certain indicated in this order, subject to the further orders of this Court, for the following reasons: The court finds that placing the children with the paternal grandfather is in the best interests of the children, and during the period of such placement, Respondents, Josefina DL and Pablo O, are to remain under the supervision of a child protective agency, social services official, or duly authorized agency upon the following terms and conditions to be met by Respondents:
DISPOSITION ORDER ON CONSENT OF THE PARTIES AND COUNSEL:
Placement of Sarahi, Abraham and Isaac with Commissioner, restrictive placement with paternal grandfather Mr. Pablo O.,
The trial discharge conference is scheduled for 4/24/19 at 4pm,
The respondents shall continue with dyadic therapy and individual counseling as therapeutically recommended,
The respondents to comply with homemaking services when the children are returned,
The agency shall provide a written referral to the parties and counsels,
The respondents shall refrain from using corporal punishment on the children,
The respondents shall comply with ACS supervision including announced and unannounced visits, and
The respondents shall comply with reasonable written ACS referrals on written notice to all counsels.
After the trial discharge conference was held, the O. children were released to the respondents on a trial discharge on or around April 29, 2019. Yadiel, who is only biologically related to the respondent mother, was released to his father, Dario X. A., on or around April 30, 2019.
Motions to modify disposition under FCA § 1061 and to grant the respondents suspended judgments under FCA §§ 1052 - 1053
Counsels for the respondents and children argue that the Court should modify the disposition order entered on April 23, 2019. The respondents and the attorney for the children argue that both respondents have taken responsibility for not providing immediate medical care for the child Abraham after he suffered a burn. Both respondents have engaged and completed all the services recommended by the child protective agency. Among the services were CPR and First Aid courses, parenting and anger management courses, mental health evaluations and parent-child psychotherapy. The respondents and the attorney for the children argue that child protective proceedings are not intended to be punitive in nature. They are meant to serve the best interest of children by addressing issues related to their welfare. ( Matter of Aubrey R. , 65 Misc 3d 1033 [Fam Ct Kings County 2019] ).
The movants argue that if the Court grants the motion and changes the disposition of the case to a suspended judgment, is not a reward for the parents. At disposition, the Court must make a determination based on the best interest of the children. In this instance, the movants argue that it would be in the best interest of the subject children to allow the family the opportunity to obtain a clean slate as this is the family's first involvement with a child protective agency.
ACS' position is that the Court should not modify the disposition entered on April 23, 2019. The petitioner argues that both respondents fail to show good cause to modify the dispositional order. The petitioner also argues that the respondents fail to demonstrate that a suspended judgment is in the children's best interest. The petitioner argues that a suspended judgment was not the proper disposition in this matter at the time the order was entered, as the children were placed with the Commissioner of ACS under the April 23, 2019 order of disposition. Thereafter, a December 3, 2019 permanency hearing order continued the children's placement.
The petitioner argues that there were no appeals filed. No CLPR § 2221 motions to reargue or renew were filed. It is ACS' position that modifying the disposition to terms that are not consistent with the adjudication of the case is against the public interest and the stability and finality of judgments. The petitioner argues that the four factors under Matter of MN , 16 Misc 3d 499 [Fam Ct, Monroe County 2007], were not met at the time of disposition, and thus the Court did not consider a suspended judgment then. The factors, the petitioner argues, should not be considered in determining the remedy retroactively.
The petitioner argues that the respondents' reliance in case law (Matter of MN and Matter of Aubrey R ., 65 Misc 3d 1033 [Fam Ct Kings County 2019] ) is misguided. The current set of facts are distinguishable from these two cases in that: 1) under Matter of MN the suspended judgment was deemed proper by the Court at the time of disposition, whereas in this case the children were placed under the disposition and first permanency order; and 2) under Matter of MN and Matter of Aubrey R . the respondents failed to recognize that the children were in danger, as distinguished from this case. The respondents were aware that one of the children was severely injured and both respondents failed to obtain medical assistance.
The petitioner argues that if the motion is granted the Court would be acting against the legislature's intent and the language within FCA § 1052, which prohibits a suspended judgment disposition when a child is placed in accordance with FCA § 1055. The petitioner argues that the Court should not consider what is best for the respondents regarding modifying disposition, but rather what is in the children's best interest. Vacating a finding of neglect or abuse retroactively because a respondent completed services does not assist the State in protecting children. A neglect or abuse finding would become meaningless since it could easily be erased without record of it ever occurring. It would set a bad precedent that could limit the State's response to isolate children from potentially dangerous adults at first indication of possible harm.
Retroactive Suspended Judgment
Family Court Act § 1061 grants the Family Court broad authority to "stay execution, of arrest, set aside, modify or vacate any order issued in the course of a proceeding under [Article ten of the FCA]" upon a party's or the Court's motion. The remedy may be granted based on "good cause shown and after due notice". (See Matter of Leenasia C. (Lamarriea C.), 154 AD3d 1 [1st Dept 2017] ; Matter of Araynah B. , 939 NYS2d 239 [2d Dept 2011] ). "The Court has discretion in determining whether a hearing is necessary upon a motion to modify an existing dispositional order." (Matter of Carrie F. v. David PP. , 34 AD3d 1108, 1109 [3d Dept 2006] ). The Court can modify a dispositional order upon a showing of good cause, "so long as it reflect[s] a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances". (See Matter of Leenasia C. (Lamarriea C.) ; Matter of Araynah B. ).
Family Court Act § 1061 applies to both fact-finding and dispositional orders. "[T]he Family Court Act does not prohibit the Family Court from granting a respondent a suspended judgment, ‘retroactively,’ in order to vacate a finding of neglect and dismiss a neglect proceeding." (Matter of Leenasia C. (Lamarriea C.) at 9). In Leenasia C the Appellate Division First Department held that the factors enumerated under Matter of Araynah B. and Matter of MN are relevant in determining whether to vacate a neglect finding. These factors are: "(1) respondent's prior child protective history; (2) the seriousness of the offense; (3) respondent's remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent's amenability to correction, including compliance with court-ordered services and treatment." (Matter of Leenasia C. (Lamarriea C.) at 12).
Analysis of the present arguments and motions
The Court finds that there is no procedural opposition to the relief sought in the respondents' motions. All pleadings proffered by counsel recognize the authority vested in the Court under Family Court Act § 1061 to modify any order issued in the course of a proceeding. The standard under FCA § 1061 is good cause.
In this case the Court finds that there is good cause shown by the movants for the Court to consider their motion under FCA § 1061. Since the dispositional order was entered, the respondents' actions toward rehabilitation have been deliberate, consistent and successful. The respondents completed all services ordered in the disposition order. Some services were completed prior to disposition. The children were trial discharged to the respondents' care shortly after the disposition order was entered on April 23, 2019. They have remained at home without further negative involvement with the child protective agency or any safety concerns.
The law permits a suspended judgment under FCA § § 1052 and 1053 subject to 22 NYCRR § 205.83, which contains in part that:
"Any order suspending judgment entered pursuant to section 1052 of the Family Court Act shall contain at least one of the following terms and conditions that relate to the adjudicated acts or omissions of the respondent, directing the respondent to:
(1) refrain from or eliminate specified acts or conditions found at the fact-finding hearing or constitute or to have caused neglect or abuse;
(2) provide adequate and proper food, housing, clothing, medical care, and for the other needs of the child;
(3) provide proper care and supervision to the child and cooperate in obtaining, accepting or allowing medical or psychiatric diagnosis or treatment, alcoholism or drug abuse treatment, counseling or child guidance services for the child;
(4) take proper steps to insure the child's regular attendance at school; and
(5) cooperate in obtaining and accepting medical treatment, psychiatric diagnosis and treatment, alcoholism or drug abuse treatment, employment or counseling services, or child guidance, and permit a child protective agency to obtain information from any person or agency from whom the respondent or the child is receiving or was directed to receive treatment or counseling"
Under the disposition order for the three O. children, the respondents were required to complete services including to continue with dyadic therapy and individual counseling as therapeutically recommended; to comply with homemaking services when the children are returned as referred by the agency in writing to the parties and counsels; to refrain from using corporal punishment on the children; and to comply with ACS supervision including announced and unannounced visits. The three children were released to the respondents under a trial discharge on or about April 29, 2019, shortly after the disposition order.
During the permanency hearing held on December 4, 2019, it was agreed by all counsels and the parties that there were no outstanding services for the family under the disposition order. It was also agreed that there were no safety concerns preventing the children from being released to the respondents pursuant to a final discharge, nor was there a need for ongoing supervision by ACS or the Court. ACS previously scheduled a final discharge conference to be held on the same day. It was not held due to the filing of these motions. This case is analogous to Leenasia C in that there are no outstanding orders required for the respondents to maintain the safety of the children in the home.
To determine whether the retroactive suspended judgment should be granted, the Court follows the analysis of factors presented in Leenasia C.
1. The respondents' prior child protective history: It is undisputed that this is the first child protective involvement for this family.
2. The seriousness of the offense: A child burned by an iron in the chest area is an extremely serious matter which requires parents to provide proper medical attention to the child. The Court notes that the findings entered against both respondents are based on medical neglect. There is no finding of abuse regarding the infliction of the burn against Abraham's chest. There is a finding that both parents knew that the child suffered a second and third degrees burn to his chest area and did not obtain medical assistance for five days.
3. The respondents' remorse and acknowledgment of the abusive/neglectful nature of his or her act : Both respondents provided affidavits in support of their motion. In the affidavits they express remorse and take responsibility for not taking the child to the emergency room as soon as they became aware of Abraham's injury. Both respondents provide insight about their roles and their experiences of their children being removed from their care and returning home.
4. The respondents' amenability to correction, including compliance with court-ordered services and treatment: Both respondents have provided proof of completing the services ordered by the Court and recommended by the child protective agency. Both respondents provided insight about the positive lessons learned during services in their supporting affidavits. There is no record of noncompliance with the child protective agency.
Balancing the factors under Leenasia C., this Court finds that both motions should be granted, and grants an order for a suspended judgment for both respondents based on the best interest of the children standard. The Court does not make this decision lightly; the finding of medical neglect is serious. A child with second and third degree burns to his chest area must be provided with urgent medical assistance. The fear of a parent that a child might be taken away upon seeking medical assistance is not a reasonable excuse to deny the child of his or her medical needs. It is clear that the health and safety of a child must be the primary priority for parents.
The Court is required to balance all the factors as provided by the Appellate Division First Department case law. The family did not have prior history with a child protective agency. It is undisputed that the respondents cooperated with ACS throughout the pendency of the case, including attending meetings and completing all services recommended. The respondent mother made an admission of medical neglect in Court. The respondent father and person legally responsible for Yadiel A., submitted to the Court's jurisdiction under FCA § 1051 and consented to the Court entering a finding of medical neglect. Both respondents were present and participated during the Court proceeding.
Both respondents acknowledged their mistake in not providing Abraham with immediate appropriate medical care in their affidavits. The respondent mother states under oath:
"I take full responsibility for my failure to take Abraham to the hospital immediately after he was burned. I am filled with remorse. If I could go back to May 4, 2018, I would've taken my child Abraham immediately to the hospital. After receiving the services, I have learned the serious and long term impact the burn could've had on Abraham's health. At the time, I was ignorant in thinking that applying tomato sauce and cream to the burn was sufficient to take care of my baby." [Respondent mother's affidavit, Paragraph 8].
The respondent father states under oath:
"[ ] We were terrified of taking to take him [sic] to the hospital because we had heard about ACS and feared they would take him away from us. We called a friend who is an EMS worker and over the phone he told us to keep the burn dry and to apply a burn cream. That is what we did over the next couple of days." [Respondent father's affidavit, Paragraph 8].
"I take full responsibility for my failure to take Abraham to the hospital after I got home on May 4, 2018. It was the biggest mistake I have ever made and I am filled with remorse. We let our fear of ACS removing the children drive our decision-making and I regret that every single day. I understand now that I acted in a way that could have had serious and long-term impact on Abraham's health. [ ] Now that I have taken a first aid course and through the reports form the doctors who treated Abraham's burn, I understand that burns can get worse if they are not treated professionally and it is extremely difficult to treat burns at home." [Respondent father's affidavit, Paragraph 13].
"I feel I have truly learned from this entire court case. I will always put my children's well being [sic] ahead of everything else. I wish that I could go back in time and change what I did, but I cant [sic], so I am focused on the ways that I have grown from this case through the services and therapy. I am committed to continuing to learn and grow from my mistake[.]" [Respondent father's affidavit, Paragraph 27].
Both respondents participated in therapy with Abraham and Sarahi. All reports maintain that the respondents have a positive relationship with their children. The respondents are utilizing the skills learned in services to parent their children positively and safely. When analyzing these factors collectively, it is in the best interest of the children to modify the disposition and grant the motions for retroactive suspended judgments for both respondents.
The present case is distinguishable from several examples. In Matter of Zechariah J., 84 AD3d 1087 [2d Dept 2011], the Court did not find a suspended judgment appropriate where the respondent failed to acknowledge and address the issues that led to the child's removal. The Court found that the respondent lacked insight of his problems. In Matter of Juan A. , 72 AD3d 542 [1st Dept 2010] the Court did not find a suspended judgment appropriate as the respondent did not see that her drug dependency threatened the child's safety. The Court reasoned that the respondent's action proved her failure to understand the seriousness of her issues. In Matter of Mykle Andrew P. v. Antonio P. , 55 AD3d 305 [1st Dept 2008], the Court did not find a suspended judgment appropriate where a respondent did not comply with the agency's recommendations until the very end of the proceeding prior to disposition.
The totality of the evidence presented demonstrates by a preponderance of the evidence that the respondents have taken the child protective agency's involvement seriously and have made efforts since the filing of this case to learn how to become better parents and engaged in rehabilitation services. The Court finds that it is in the children's best interest to grant the suspended judgment for the respondents. The children can benefit from their mother being able to rejoin her career as a home health aide, a position that she held prior to the commencement of this matter. A finding of neglect could interfere with the family's economic well-being, and thus would not serve the best interest of the children. The attorney for the children supports the Court's order granting both motions.
The Court does not find the agency's position persuasive. ACS argues that a suspended judgment is not warranted because the children were placed under the original dispositional order. The finding of good cause is based on the fact that the children and parties were in a different position at disposition than where are now and where they have been since the submission of the motions in December 2019. The respondents were able to take advantage of the services recommended and rehabilitated themselves to reunite their family. The Court finds that this end result is what the Matter of Aubrey R . Court promoted in stating that child protective proceedings are not intended to be punitive in nature but are rather meant to serve the best interest of children by addressing issues related to their welfare. The Court relies on the precedents set under Matter of Leenasia C. (Lamarriea C.) , Matter of Araynah B. and Matter of MN in granting the present motions. In Matter of Leenasia C. (Lamarriea C.) the Appellate Division First Department did not find the arguments that ACS presented in that case persuasive and ruled in favor of the respondent mother. ACS makes the same arguments in this case.
For the foregoing reasons, it is hereby:
ORDERED, that both the respondents' motions are hereby GRANTED. The Court retroactively modifies the disposition order issued on April 23, 2019 to include a suspended judgment with all terms of the April 23, 2019 order, effective December 4, 2019. The children Sarahi O., Isaac O. and Abraham O. are retroactively released to the respondents effective December 4, 2019. The Court retroactively terminates supervision on December 4, 2019, grants the suspended judgment for the respondents retroactively to December 4, 2019 and vacates the findings of neglect for all four children retroactively. The petitions are hereby dismissed with prejudice.