Opinion
06-06-2023
In the Matter of a Custody Proceeding Under Article 6 of the Family Court Act Chester HH., Petitioner, v. Angela GG., Respondent.
Scott A. Miller, J.
Petitioner Chester HH., (hereinafter "the father") and Respondent Angela GG. (hereinafter "the mother") are the parents of the subject child (date of birth: XX/XX/07) (hereinafter "the child"). This is a proceeding pursuant to Family Court Act Article 6. This action commenced with the father's filing of a UCCJEA modification petition by Order to Show Cause on January 19, 2022.
The parties were granted joint legal custody by an order of the 49th Circuit Court of Mecosta County, Michigan, entered September 8, 2014. The mother, a resident of Michigan, was granted "sole physical custody" of the child, while the father, at the time a resident of Sayre, Pennsylvania, was granted parenting time as the parties agree. Under the order, the child's residence was not to be changed from the state of Michigan without court approval. (Default Judgement of Support entered September 8, 2014). Subsequently, the father moved to Tompkins County, New York.
On December 18, 2021, the father picked the child up from the mother's home in Michigan and brought her back to his home in Tompkins County for agreed-upon parenting time over the child's school break. While in New York, the child made disclosures of alleged neglect and abuse that had occurred in the mother's care and custody in Michigan. The child had disclosed to the father that the mother's brother had sexually assaulted her on at least two occasions and further that the mother's home was in a constant state of unsanitary squalor which included a rodent infestation. The child further alleged that the mother suffered from mental and physical ailments which rendered her unfit to protect and care for the child. The father contacted Child Protective Services, cooperated with an investigation by New York State Police which involved multiple interviews of the child , and ultimately filed the instant petition on January 19, 2022. This Court granted the father temporary emergency sole legal custody and primary placement and suspended the mother's parenting time, issuing a temporary full stay-away order of protection against the mother in favor of the child under Article 6 of the Family Court Act.
At this time, no criminal charges have been filed against any individual in connection with the investigation.
On March 7, 2022, counsel for the mother filed an Order to Show Cause seeking dismissal of the father's petition for lack of jurisdiction, arguing that Michigan was the home state. As part of the mother's order to show cause, counsel attached a copy of the investigation from the Mecosta County child protective services which concluded that the child's allegations of sexual assault were not reliable and further that the condition of the mother's home was now improved and there were no safety concerns. On March 11, 2022, this Court held a video conference via Zoom with the Mecosta County Family Court pursuant to Domestic Relations Law § 75-i. On March 14, 2022, the Attorney for the Child filed an Affirmation in Opposition to the mother's Motion to Dismiss. On the same date, the Court held an appearance at which it heard oral arguments by counsel. The father was represented by Attorney Francisco Berry, the mother was represented by Attorney Lucy Gold, and the child was represented by Attorney Thomas Shannan of Citizens Concerned for Children, Inc. The Court ruled that while the father had appropriately utilized this Court's temporary emergency jurisdiction by filing his petition here, the Court must dismiss for lack of jurisdiction under the UCCJEA after having conducted its conference with the Michigan court during which both courts agreed Michigan is the home state and, now that the Mecosta County child protective services had determined that the child was safe to return to Michigan, this Court could no longer exercise temporary emergency jurisdiction.. The Court vacated its temporary order of custody and visitation as well as its temporary order of protection. The Attorney for the Child and the father appealed and obtained a stay.
On August 18, 2022, the Third Department [ Matter of Chester HH. v. Angela GG., 208 A.D.3d 945 (2023)] reversed this Court's summary dismissal of the father's petition, ruling that the Family Court should have first conducted a full evidentiary hearing here in Tompkins County in order to determine whether the child was at imminent risk of harm if returned to Michigan and whether it should continue its assumption of temporary emergency jurisdiction. The Third Department made it clear that the trial court should not have even considered the Mecosta County child protective services investigation when deciding whether to grant the mother's order to show cause which sought dismissal of the father's petition for want of jurisdiction. Rather, the Michigan CPS report favorable to the mother should have been disregarded and "the allegations in the father's petition must be accepted as true, and the petition is to be afforded a liberal construction and afforded the benefit of every possible favorable inference." Id. at 947.
The matter having been remitted, this Family Court conducted its evidentiary hearing on September 14, 2022. The Court heard testimony from the father and the mother. Attorney for the Child Exhibits 1 through 3 and 5 through 10 were received into evidence. On October 26, 2022, the Court conducted a modified Lincoln Hearing with the child and all counsel, immediately followed by a traditional Lincoln Hearing pursuant to Article 6 with the child and the Attorney for the Child only. The Attorney for the Child requested the modified Lincoln hearing format due to counsel's concerns that the neglect and abuse allegations should be subjected to cross-examination. The mother and father's counsel consented, as did the Court. The Court reviewed the final written submissions of the father's counsel filed January 3, 2023, the Attorney for the Child filed January 3, 2023, and the mother's counsel filed February 17, 2023.
This Court provided a copy of the Third Department's stay to the Michigan court on June 22, 2022, with no response. This Court again provided a copy of the stay on July 15, 2022, and received confirmation of receipt. This Court provided a copy of the Third Department's Memorandum and Order on August 18, 2022, with no response received to date.
The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and notified the parties and the attorneys of the results of these searches.
FINDINGS OF FACT
The father and the child were completely credible. The mother was also credible in most areas of her testimony, corroborating many of the allegations of neglect and abuse that occurred while the child was in her custody and care in Michigan. The Court makes the following findings of fact which were established by a preponderance of the credible and admissible evidence:
The mother engaged in a pattern of neglect placing the child at imminent risk of harm. The mother failed to properly dispose of trash, allowing it to pile up in the home she shared with the child. As a result, the home became infested with mice and mice feces. The mice were everywhere including the child's bedroom and the kitchen cupboards and drawers. The child would wake to mice crawling on her in the nighttime, and she could hear mice eating each other in the garbage can. The mother created a homemade mousetrap wherein she drowned the mice in a bucket, and the child was made to assist by dumping the mice corpses outside. The walls of the home were black with mold and yellow with cigarette smoke. There were long periods of time during which the home had no electricity or hot water.
The child became depressed (and eventually suicidal) in the mother's care. The mother failed to obtain any counseling and/or medication for the child for the two to three years following formal diagnosis. The mother finally enrolled the child in counseling in November of 2021, just one month before the child came to live with the father in New York. The mother also failed to take the child to her pediatrician for four years and failed to obtain regular dental care for the child. The mother suffers from her own mental and physical ailments which prevent her from properly caring for the child or household. The mother would deny the child basic necessities including hygiene products claiming she could not afford them. The mother made the child stay home from school when the mother did not feel well enough to take her, resulting in numerous absences.
The maternal uncle was verbally abusive to the child while the child was in the mother's care. He once threatened to knock the child out, and he compared her to a school shooter. He once punched a hole in the wall in the child's presence. The child also believes she may have been sexually abused and raped by this same uncle . The first time was in the spring of 2018, and it felt like she was penetrated by two fingers. The second time was in the spring of 2021, and it felt like she was penetrated by a penis. After the child moved to New York, the mother lost her home to foreclosure. The mother currently resides in the maternal grandmother's two-bedroom trailer where this same uncle lives. The maternal grandmother and the uncle occupy the bedrooms, while the mother sleeps on a pull-out couch in the living room. If the child were sent back to reside with her mother, she would be forced to share the trailer living room with her mother, sleeping under the same roof as the man she believes sexually abused and raped her. This would place the child at imminent risk of harm.
The mother's own testimony corroborated this. The mother testified, "I honestly believe something happened to [the child] because I noticed her behavior changed." When asked whether her brother sexually abused the child, the mother answered, "I don't know if he did or not."
By contrast, the father has met all of the child's needs while she has been in his continuous care since December 18, 2021. He owns a home and has a stable job. The house is clean and warm. The father, father's wife, father's step-child, father's son, and the child reside in the home. The child has her own bedroom. The child attends school in the father's home school district. The father enrolled the child in counseling. The father has obtained medical and dental care for the child. The child was prescribed an antidepressant and is feeling much better.
On May 25, 2022, the Michigan court issued an order finding the father in contempt and levying a fine against him. The Michigan court declared: "Michigan has exclusive, continuing jurisdiction under the UCCJEA. The New York orders are invalid and without authority under the UCCJEA. Tompkins County Courts did not follow proper procedures under the UCCJEA Father's failure to file a motion in this court and refusal to return the child are a blatant and willful disregard for the court order. Father's actions are in bad faith." The Michigan court declared that if the father failed to return the child within 30 days, a bench warrant would be issued against the father, his parenting time would be automatically suspended, and the mother would be granted exclusive parenting time. (Order After Show Cause Hearing dated May 25, 2022 - attachment to AFC Summation). The father, having been granted a stay by the Third Department, did not return the child to Michigan by June 25, 2022, or at any time. The terms of the Michigan order make clear that, should the child be returned to Michigan after June 25, 2022, the Michigan court would not first conduct a hearing to determine whether the child would be at imminent risk of harm if returned to the mother's custody and care but would rather immediately place the child back with the mother (where, this Court finds, the child would be at imminent risk of harm). The Michigan Court has not provided any indication to this New York court that it has vacated any of its orders in response to the Third Department's reversal and remand decision and order.
CONCLUSIONS OF LAW
Domestic Relations Law § 76-c provides in part:
"A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child." DRL § 76-c (1).
"If there is a previous child custody determination that is entitled to be enforced under this article, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections seventy-six through seventy-six-b of this title. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires, provided, however, that where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections seventy-six through seventy-six-b of this title has taken steps to assure the protection of the child [emphasis added]." DRL § 76-c (3).
Based upon the foregoing, the child remains at imminent risk of harm were she to be returned to the mother's care and custody in the state of Michigan. The mother has numerous physical and mental ailments that prevent her from properly caring for the child or her household. As such, she engaged in a pattern of neglect that placed the child in danger. While the child was in her care, the mother allowed trash to pile up in her home, causing a severe mice infestation. The home was covered in mice feces, mold, and cigarette smoke. The home went without electricity or hot water for lengthy periods of time. The mother subsequently lost her home to foreclosure, and she now resides in the same two-bedroom trailer as the maternal uncle whom the child believes sexually abused and raped her on separate occasions. The child would be forced to live and sleep under the same roof as this man should she be returned to the mother. In addition, the mother neglected the psychological, medical, dental, hygienic, and educational needs of the child, causing harm to the child in all such areas. As the child is present in New York and it is necessary to protect the child from the emergency created by the child's living conditions in Michigan, this Court has temporary emergency jurisdiction of this matter under DRL § 76-c (1).
Further, pursuant to DRL § 76-c (3), this Court's order shall remain in effect until the Michigan court "has taken steps to assure the protection of the child." As previously noted, the Mecosta County Family Court ordered a child protective services investigation based upon the father's allegations in his New York temporary emergency petition. The results of the Mecosta County child protective services investigation determined that the child was not at risk if returned to the mother in Michigan. However, this Court is bound by the Third Department's remittal decision and order, and as such, this Court could not consider the results of the Michigan CPS investigation. This Court, after the full evidentiary hearing, has now found that the child remains at imminent risk of harm were she to be returned to the mother's care and custody in the state of Michigan.
The child has been continuously residing with the father in Tompkins County, New York, for more than seventeen months and is safe and thriving in every aspect of her life.
In reality, however, this case presents the unique circumstance where New York's exercise of temporary emergency jurisdiction under DRL § 76-c has become de facto permanent. Other than declining to exercise further jurisdiction and consenting to the jurisdiction of New York, there is no action that the Michigan Family Court could take in order to assure the safety of the child. As previously stated, based upon this Court's findings, after the evidentiary hearing, the child is at imminent risk if she is returned to the custody of her mother in the state of Michigan. As the Michigan Family Court has failed to take affirmative steps in order to assure the protection of the child - and has in fact taken steps that place the child at imminent risk of harm by issuing an order that the child be returned to the mother's custody without first holding an evidentiary hearing - the need for temporary emergency jurisdiction continues and this Court's order remains in effect permanently. This case presents the rare set of circumstances where a New York Family Court's exercise of temporary emergency jurisdiction under DRL § 76-c (3) has "ripen[ed]" into permanent jurisdiction based upon the fact that the only action the home state could take in order to assure the safety of the child is to decline the exercise of further jurisdiction and consent to New York now becoming the child's home state. As such it is hereby:
Sobie, Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 76-c.
ORDERED that the father shall continue to have sole legal custody and sole placement of the child; and it is further
ORDERED that the mother shall have liberal and regular telephone and/or video communication with the child, strongly taking into account the child's wishes; and it is further
ORDERED that the mother shall have supervised parenting time with the child in Tompkins County, on dates and times as agreed between the parties, strongly taking into account the child's wishes, supervised by the father; and it is further
ORDERED that the child shall not be removed from New York State until further order of the Court; and it is further
ORDERED that the mother shall have full, complete, and independent access to the medical and educational records and providers of the child; and it is further
ORDERED that in regulating their own behavior, the parties shall consider the following "rights" of a child whose parents are separated (adapted from the Parent's Handbook of the New York State Parent Education and Awareness Program - 2016):
1.The right not to be asked to "choose sides" between their parents.
2. The right not to be told any details of the legal proceedings going on between their parents.
3. The right not to be told "bad things" about the other parent's personality or character.
4. The right to privacy when talking to the other parent on the telephone.
5. The right not to be interrogated by one parent about the other parent.
6. The right not to be asked to carry messages between parents.
7. The right not to be asked by one parent to tell the other parent untruths.
8. The right not to be used as a confidant regarding adult matters.
9. The right to express feelings, whatever those feelings may be.
10. The right to choose not to express certain feelings.
11. The right to be protected from parental "warfare."
12. The right not to be made to feel guilty for loving both parents.