Opinion
NN xxxx-xx
12-24-2015
In the Matter of The N./ G./ T. Children, Children Under Eighteen Years of Age Adjudged to be Abused by v. Samantha N., Respondent.
The Administration for Children's Services was represented by Jeffrey Craves, Esq., the respondent mother was represented by the Bronx Defenders by Patrick Clark, Esq. and the children were represented by the Legal Aid Society Juvenile Rights Practice by Madeleine Stokes, Esq.
The Administration for Children's Services was represented by Jeffrey Craves, Esq., the respondent mother was represented by the Bronx Defenders by Patrick Clark, Esq. and the children were represented by the Legal Aid Society Juvenile Rights Practice by Madeleine Stokes, Esq.
This is an Article 10 abuse and neglect proceeding. On December 12, 2013, Ms. Samantha N.'s (Ms. N.) six children were remanded to the care and custody of the Commissioner of Social Services. On August 11, 2015, Ms. N's children were trial discharged to her care. On September 9, 2015, the court granted the foster care agency leave to final discharge the children.Shortly thereafter, on September 28, 2015, counsel for Ms. Samantha N. (Ms. N) filed an Order To Show Cause (OTSC), pursuant to Family Court Act (FCA) § 1061, requesting that the court modify its May 13, 2015 Order of Disposition. Ms. N seeks to modify the order placing the children to an order suspending judgment. Alternatively, the OTSC requests that the court enter an order vacating the February 15, 2015 Order of Fact-Finding and dismiss the neglect petition under FCA § 1061 and § 1051. Ms. N contends that there is good cause (see Matter of Shinice H., 194 AD2d 444, 444[1st Dept 1993]) to either vacate the court's order or to at least modify the dispositional order and enter a suspended judgment. On October 27, 2015, the Administration for Children's Services (ACS) filed response papers opposing Ms. N's OTSC. ACS argues that there is no basis to modify the prior Order of Disposition or to vacate the Order of Fact-Finding as no good cause exists and further, the children's best interests fail to justify a suspended judgment. The attorney for the children did not submit papers in support or opposition to the OTSC, but orally indicated support for Ms. N's motion.
On November 19, 2015, all counsel appeared to be heard on the OTSC. The court heard oral argument from all counsel. No witnesses were called by Ms. N, ACS or the attorney for the children. The court notes that Ms. N was not present in court when the matter was called at the appointed time. The court reserved decision on the application, with its written decision to follow.
For the reasons that follow, respondent's motion is denied in its entirety.
PROCEDURAL HISTORY
On December 12, 2013, ACS filed neglect petitions against Ms. N on behalf of each of her six children alleging that she failed to provide her children with proper supervision or guardianship in that the children were left home alone for long periods of time on a regular basis, and Ms. N misused marijuana, and was not participating in substance use treatment. On that day, the Honorable Erik S. Pitchal remanded the subject children to the care and custody of ACS. The children were subsequently placed with the New York Foundling foster care agency. On December 19, 2013, Ms. N appeared before the court for the first time and the Bronx Defenders were assigned as her counsel.
On June 13, 2014, the court commenced a contested fact-finding hearing. The court heard the testimony of the investigating Child Protective Specialist (CPS) Kehinde Jegede. The hearing continued on August 13, 2014, October 31, 2014, and February 18, 2015. On February 18, 2015, the court entered a finding of neglect against Ms. N based on inadequate guardianship and supervision in that she repeatedly left her children home alone and that she misused marijuana. The court credited the testimony of CPS Jegede that Ms. N had left her child Shajada, who is 12 years old, to supervise the younger children, who are 9, 7, and 6 respectively, for extended periods of time without a working telephone or any instructions regarding how to safely care for the younger children. The court also found that Ms. N had a practice of staying awake late at night, sleeping during the day, and that she habitually used marijuana, which "interfered with her ability to better her children's situation" and "interfer[ed] with her ability to provide for their basic necessities" (Order of Fact-finding, dated November 18, 2015).
On October 29, 2014, the court held a permanency hearing. At the time of the hearing, the court learned that Ms. N was not consistently visiting the children, and the toxicology screens, taking place through the FEGS program Ms. N was participating in, were not being supervised. On this date, Ms. N refused to submit to an in-court drug screening, and the court inferred that the test result would have been positive for illicit substances. The court continued foster care placement of the children, and ordered that after four weeks of consecutive negative drug testing, Ms. N would be permitted unsupervised sandwich visits with her children.
On April 6, 2015, this court held another permanency hearing where Foundling Hospital case planner Veronica Diamond (Ms. Diamond) testified that Ms. N tested positive for marijuana on March 13, 2015. She also reported that Ms. N had not adequately engaged in her service plan. Specifically, Ms. N still needed to comply with mental health services, drug treatment and random drug tests. The court continued the foster care placement of the children, and ordered unsupervised visits between Ms. N and her children after she completed three negative drug tests.
On or about May 16, 2015, Ms. N appeared for a dispositional hearing. ACS requested that the court enter the following orders at disposition: (1) placement of the children through the next permanency hearing; (2) Ms. N comply with a mental health evaluation; (3) Ms. N continue with her drug treatment and comply with all reasonable ACS referrals; and (4) that the children engage in counseling services. Ms. N did not request a hearing, and consented to the dispositional order placing the children in foster care.
On August 11, 2015, Ms. N's six children were trial discharged to her care. On September 9, 2015, the court granted the foster care agency leave to final discharge the children. The children are living with Ms. N in East New York, and she ensures that they attend school in Queens. To date, Ms. N has complied with the court's dispositional order. There has been no request by ACS to extend supervision at the expiration of the supervision period.
On September 30, 2015, Ms. N's attorney filed an OTSC, pursuant to FCA § 1061, seeking modification of the dispositional order dated May 13, 2015. The OTSC requested that the court modify the previously entered order placing the children to an order directing that judgment be suspended. In the alternative, Ms. N seeks to vacate the fact-finding order, dated February 15, 2015, pursuant to FCA § 1051(c), and dismissal of the neglect petitions filed on behalf of each of Ms. N's children. The court heard oral argument, without objection from counsel, as there was no specific demand for a hearing. Oral argument on the motion was held on November 19, 2015. Ms. N contends that given her substantial rehabilitative efforts, her compliance with court orders, and her on-going commitment to her children's well-being during their time in foster care, there is certainly good cause to either vacate the court's order of fact-finding or to modify the court's dispositional order, and enter a suspended judgment. She further contends that a finding of neglect will has a substantial deleterious effect on her future employment potential and earning ability, thus limiting her ability to provide for her children. To that end, Ms. N maintains that modification of the order of disposition would be in the children's best interests. DISCUSSION Modification of the Dispositional Order to Grant a Suspended Judgment
Family Court Act § 1061 grants the Family Court extremely broad authority to "stay execution, of arrest, set aside, modify or vacate any order issued in the course of a proceeding under this article" including a prior fact-finding or dispositional order based on "good cause shown and after due notice" (Matter of Araynah B. v Moshammet R., 34 Misc 3d 566, 573 [2d Dept 2011]; see also Matter of Kenneth QQ v Jodi QQ, 77 AD3d 1223, 1224 [3d Dept 2010]; Matter of Carrie F. v David PP, 34 AD3d 1108, 1109 [3d Dept 2006]; Matter of Angelina AA, 222 AD2d 967, 969 [3d Dept 1995]). Conclusory assertions are insufficient (see In re Melissa "FF", 285 AD2d 682, 683 [3d Dept 2001]). Modification of a dispositional order may be made by a court without holding a hearing (see Matter of Carrie F. v David PP., 34 AD3d 1108, 1109 [3d Dept 2006]). Thus, it is well-settled that 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 the children after consideration of all relevant facts and circumstances " (Matter of Araynah B. v Moshammet R., 34 Misc 3d 566, 573 [2d Dept 2011] ; see also Matter of Kenneth QQ. v Jodi QQ., 77 AD3d 1223, 1224 [3d Dept 2010], citing Matter of Elijah Q., 36 AD3d 974, 976 [3d Dept 2007], lv denied 8 NY3d 809 [2007] [Court held that a dispositional order can be modified upon the showing of "good cause" as long as it "reflect[s] a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances, and [is] supported by a sound and substantial basis in the record"]).
In modifying a dispositional order, the court has the discretion to adopt one or more of the options outlined in Family Court Act §§ 1052 and 1055-b. Consequently, the court may suspend judgment, release the children to a parent, place a parent or other person under supervision, place the children in foster care, enter an order of protection, place the children in the custody of a relative or other suitable person or enter an order of guardianship. Section 1061 prohibits the court from entering an order that combines placement of the children with a suspended judgment or a release to a parent.
In Matter of Araynah B., the respondent was brought before the court in connection with allegations not so dissimilar from the case at bar. However, the manner and immediacy in which the respondent in Araynnah B. sought to ameliorate the concerns presented to the court are quite dissimilar. The Court in Araynnah B. set forth four factors to be considered by courts when evaluating the appropriateness of the entry of a suspended judgment. The four factors to be considered 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 act; and (4) respondent's amenability to correction, including compliance with court-ordered services and treatment (Matter of Araynah B. v Moshammet R., 34 Misc 3d at 575). We consider each factor in weighing Ms. N's application. RESPONDENT'S PRIOR CHILD PROTECTIVE HISTORY
There is no record of Ms. N having any prior court-involved child protective history. Nonetheless, there was an indication from ACS that Ms. N has previously come to the attention of child protective services two years earlier due to leaving the children home alone without adequate supervision. Although Ms. N has no prior court-involved history, her exposure to the child protective authorities is not a novel experience and thus a factor to be given due consideration under the circumstances. However, without an adjudication of abuse or neglect, Ms. N is not automatically disqualified. SERIOUSNESS OF THE OFFENSE
The neglect petitions before the court alleged that Ms. N failed to provide her six children with proper supervision and guardianship in that she told a child protective specialist she was not returning to her home because she could no longer care for or see her children; that Ms. N smoked marijuana every day, throughout the day; that her home lacked food; that she was depressed and overwhelmed; that her daughter, Shajada, is parentified and takes care of her siblings for long periods of time when Ms. N cannot; that the children were without Medicaid insurance coverage for two months and Ms. N refused to take her children home from the ACS field office. The petition further alleges that during the conference at the ACS field office, Ms. N told the child protective staff that as soon as the conference was over she was leaving to "go smoke a blunt" (See Neglect Petitions NN-xxxxx-x/xx ¶ 2c).
When viewed in isolation these allegations may not seem very concerning, but when viewed collectively, it is clear that the alleged offenses were more than minor, and resulted in significant harm to the children. In effect, the allegations in the petition were so serious that the children were immediately remanded and placed in foster care when the neglect petitions were initially filed. RESPONDENT'S REMORSE AND ACKNOWLEDGMENT OF THE NEGLECTFUL NATURE OF HER ACTS
New York courts have held that a suspended judgment is not appropriate when parents lack insight into the seriousness of their problems, fail to acknowledge the seriousness of the problems presented or fail to address the concerns that resulted in the removal of their children (Matter of Araynah B. v Moshammet R., 34 Misc 3d at 579, citing Matter of Amber D.C. 79 AD3d 865, 866 [2d Dept 2010]). The court in Araynah B. stated that the respondent there "acknowledged her role and willingly and expeditiously took steps designed to overcome the problems that led to the filing of the petitions" ( Matter of Araynah B., 34 Misc 3d at 580).
Here, the court had a parent who despite the immediate removal and placement of her children in foster care, continued to misuse marijuana, refused court-ordered drug testing and failed to meaningfully and substantially engage in recommended services for more than eighteen months. Unlike the court in Araynah B., this court is constrained to find a scintilla of evidence in the court's record which evinces a desire by Ms. N to immediately address the concerns presented by ACS to this court.
The neglect petitions were filed and the children remanded into foster care in December 2013. After a full contested fact-finding hearing, a finding of neglect was entered on behalf of each of Ms. N's six children on February 18, 2015. An Order of Disposition was entered, on consent, on May 13, 2015, placing the children in foster care. It was not for another three months after the court's entry of the dispositional order that the children were trial discharged to their mother. This timeline offers no indicia of urgency by Ms. N to expeditiously address the concerns resulting in the placement of her children. RESPONDENT'S COMPLIANCE WITH COURT-ORDERED SERVICES
Ms. N's compliance with services can best be described as deferred. To Ms. N's credit, she eventually engaged in and successfully completed the services requested. Ms. N's prolonged and sustained failure to comply with services ordered by the court is unfortunate. Courts have viewed belated compliance is being insufficient to warrant a grant of a suspended judgment. (Matter of Araynah B., 34 Misc 3d at 580, citing Matter of Michael C., 82 AD3d 1651, 1652 [4th Dept 2011], lv denied 17 NY3d 704 [2011]). Thus, New York courts have declined to grant a suspended judgment when a noncompliant respondent belatedly completes his or her service plan (see Matter of Elijah D. 74 AD3d 1846, 1847 [4th Dept 2010] [Family Court did not abuse its discretion in refusing to enter a suspended judgment despite father's completion of an inpatient substance abuse program where he subsequently failed drug tests and was continuously noncompliant with court-ordered interventions]; Matter of Tiara B., 70 AD3d 1307, 1308 [4th Dept 2010] [Court did not abuse its discretion in refusing to enter a suspended judgment even though mother made progress in completing recommended programs where her progress was slow and she failed to timely complete the necessary requirements]).
It is uncontroverted that Ms. N has now completed all required services and has recently been reunited with her children. Nonetheless, this court cannot ignore her lack of urgency and enthusiasm to immediately address the issues that prompted the removal of her children. Ms. N's children were placed out of her care for twenty months before being reunited with their mother. After their initial removal, Ms. N continued to refuse drug testing and failed to consistently visit with the children. It is the children's best interests the court must consider in assessing the appropriateness of the requested relief.
Ms. N's attorney argues that a neglect finding would unduly stigmatize her or potentially harm her future employment. The court is cognizant of the implications of a finding of child abuse or neglect and its accessibility to certain employers through the New York State Central Register of Child Abuse and Maltreatment. Nevertheless, an analysis of the four afore-mentioned factors reveals that a suspended judgment is not an appropriate option here. A suspended judgment is a unique dispositional tool only available in rare circumstances (see Matter of M.N., 16 Misc 3d 499, 505 [Family Ct, Monroe County 2007]). In this case, there was clear evidence that Ms. N had used drugs at a time when she was caring for her children (see Matter of O, 29 Misc 3d 1233[A], *3, 2010 NY Slip Op 52133 (U) [Family Ct., Queens County 2010]). Therefore, this case does not come close to the type of case that warrants a suspended judgment. Moreover, to the extent that Ms. N's attorney has not asked to modify the order of disposition from placement in foster care, whereby the children are currently trial discharged, to a release to Ms. N, the relief sought is statutorily unavailable. Additionally, while there are no safety concerns at this time, the children's best interests would be better served by maintaining the current child protective records, including the neglect finding. Lastly, a suspended judgment would not address the harm Ms. N is trying to avoid, namely, future disclosure of the finding of abuse and neglect against her. A successful completion of a period of suspended judgment does not result in the automatic expungement of the underlying finding of abuse or neglect. Vacatur of the Order of Fact-Finding and Dismissal of the Petition under FCA 1051 (c)
Family Court Act § 1051 (c) permits the court to dismiss a neglect petition if facts sufficient to sustain the petition are not established, and in a case of alleged neglect, where the aid of the court is not required on the record before it. Ms. N's attorney insists that the aid of the court is not required. Under the plain language of the applicable statute, this court is not authorized by section 1051 (c) to dismiss the case because neglect was not merely alleged; it was proven by a preponderance of the evidence after a contested fact-finding hearing (see Matter of Jessica S., 13 Misc 3d 505, 510 [Family Court, Kings County 2007] [court denied motion to dismiss petition after finding that it lacked the "statutory authority to dismiss a petition, pursuant to section 1051 [c], after a fact-finding order of neglect has been entered."]; see also Matter of Eustace B., 76 AD3d 428, 428 [3rd Dept 2010]]; Matter of Kayla B., 262 AD2d 137, 137 [2d Dept 1999]). CONCLUSION
It is undisputed that Ms. N has fully complied with the service plan, and she now is reunited with her children. The record before the court, however, fails to support a determination that it would be in the children's best interests to modify the prior dispositional order, nor does it support a suspended judgment. While the court understands Ms. N's desire to seek expungement of the neglect report from her child protective history, the court does not agree that good cause has been shown to vacate the prior fact-finding order, nor does the court believe that it would be in the children's best interests to dismiss the underlying petition. Accordingly, it is hereby ORDERED that respondent's motion to modify the dispositional order is DENIED; and it is further ORDERED that respondent's motion to dismiss the petitions is DENIED; and it is further ORDERED that respondent's motion to vacate the findings of neglect and dispositional order is DENIED. Dated: December 24, 2015
ENTER:
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Hon. Alma M. Gomez, JFC
NOTICE: PURSUANT TO SECTION 113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST.