Opinion
NN-15186/17
08-10-2017
In the Matter of Chloe W., A Child Under Eighteen Years of Age Alleged to be Neglected by Tara W., Respondent.
For the Petitioning Agency, Administration for Children's Services by SACC Lauren Jerozal. For the Respondent Mother, Center for Family Representation by Julie Suh; Guardian Ad Litem for the Respondent Mother, Allan D. Shafter. Attorney for the Subject Child, Chloe W., the Legal Aid Society - Juvenile Practice Division by Firdos Shircliff.
For the Petitioning Agency, Administration for Children's Services by SACC Lauren Jerozal. For the Respondent Mother, Center for Family Representation by Julie Suh; Guardian Ad Litem for the Respondent Mother, Allan D. Shafter. Attorney for the Subject Child, Chloe W., the Legal Aid Society - Juvenile Practice Division by Firdos Shircliff. John M. Hunt, J.
INTRODUCTION
On July 27, 2017, a neglect petition was filed against the respondent, Tara W. (hereinafter "Mother" or "Ms. W."), who is the mother of one child, Chloe (hereinafter "Chloe" or "subject child"), age 5. The petition alleges that the Mother suffers from, inter alia, mental health issues which impair her ability to care for Chloe. On July 28, 2017, another judge of this court remanded Chloe to the care and custody of the Administration for Children's Services (hereinafter "ACS"), and Ms. W. was ordered to submit to an imminent risk assessment. On that same date, Ms. W. demanded a hearing pursuant to New York State Family Court Act §1028 (hereinafter "§1028 hearing"), which was scheduled for July 31, 2017. On July 31, 2017, pursuant to the Queens Family Court trial part protocol, Ms. W.'s §1028 hearing was assigned to the Court. The Court heard testimony over the course of three days from three witnesses - Licensed Psychologist, Karen Cort, Ms. W., and Jennifer Herbst, a shelter case manager. A report to the State Central Registry, Doctor Cort's clinical report and curriculum vitae, and ACS's investigation progress notes were placed into evidence. THE EVIDENCE
Doctor Karen Cort (hereinafter "Doctor Cort"), Director of Queens County Family Court mental health services, testified that she met with Ms. W. for an imminent risk assessment, which she described as a limited evaluation focused on a person's current functioning. She told the Court that in connection with the interview with Ms. W., she read the petition, but did not accept the allegations at face value. She stated that she evaluated Ms. W. without preconceived notions. She testified that Ms. W. presented as a well-dressed young woman with a faint stale odor about her when the two met following Chloe's removal. Ms. W. revealed to Doctor Cort that she had been a domestic violence victim and had sought counseling at some point, but denied any psychiatric hospitalizations or a psychiatric history. Ms. W. was adamant about the fact that everyone - ACS, court personnel, her mother's and her father's paramours, and other persons with whom she came in contact - were all in collusion with her ex-husband to disrupt her life.
Doctor Cort testified that it was difficult to hold a conversation with Ms. W. because she was unable to speak in a cogent narrative. Doctor Cort described Ms. W. as loud, agitated and anxious with disorganized thinking borne out by her speech pattern. She often would not answer Doctor Cort's questions, and would continually revert back to a narrative in which Ms. W. claimed that everyone was aligned with her ex-husband and conspiring against her. Although Doctor Cort acknowledged that most people come to mental health services with a sour impression of ACS and the court system, she stated that Ms. W.'s concerns were beyond the typical. The symptoms that Doctor Cort observed were major concerns to her as she concluded that Ms. W. was not psychiatrically stable. Further, Doctor Cort told the Court that Ms. W. did not have insight into her behavior because when she talked about it with Ms. W., Ms. W. felt there was nothing wrong. Doctor Cort found that although Ms. W. was exhibiting symptoms of a psychotic nature during the assessment, she did not meet the criteria for a specific psychotic disorder. Doctor Cort expressed her professional opinion that Ms. W. should participate in a further evaluation to clarify her diagnosis and assess if Ms. W. would benefit from medication. After her interview with Ms. W., Doctor Cort determined that it would not be safe for Chloe to return to her mother.
Throughout these proceedings, Ms. W. refused to participate in the further evaluation recommended by the doctor.
Ms. W. told the Court that five-year old Chloe is her daughter and she is Chloe's primary caregiver. She stated that she had lived in Florida with her ex-husband, who is Chloe's father, until their divorce. After the divorce was finalized, she was granted custody of Chloe. Ms. W. explained to the Court that Chloe's father was a drug addict, and he physically and mentally abused her. She testified that they went to marriage counseling for years, but ultimately she had to separate from him due to his abuse. Ms. W. told the Court that during her last interaction with her ex-husband, "he beat [her] in the head." She got an order of protection for herself and Chloe, and sought counseling from a women's group in Florida to help her deal with the trauma she had experienced. Ms. W. testified that after her divorce was final, she and Chloe went to live with her mother and father, but after a disagreement with her father, she had to leave. It was during this time, according to Ms. W., that her parents divorced.
Neither the divorce decree or any other legal document referred to in her testimony was put into evidence by Ms. W..
See W. Tr. at p. 29 (08/02/17)
Ms. W. testified that with money she had saved and charity from some individuals, she went looking for a better living situation. She stated that she had a resource, whom she did not name, living in California. She thereupon attempted to relocate to California with Chloe, but soon found that California was not a lasting arrangement. She then sought to relocate with Chloe to Canada, where she has relatives. Ms. W. told the Court that she was in Canada with Chloe for about a week after which she went back to Florida. She stated that during this time, she had been in contact with her brother in New York, and she understood that she and Chloe had an open-ended invitation to live with him. Months later, without confirming her plans to do so, Ms. W. left Florida and came to New York with Chloe on the assumption that she could contact her brother and live with him immediately upon her arrival. However, when Ms. W. got to New York, she could not reach her brother. As a result, she spent the night in the Port Authority bus terminal, from where police ultimately brought her to NOVA, an acronym for "No Violence Again."
NOVA is a unit of the New York City shelter system into which Ms. W. and Chloe were accepted. Ms. W. testified that she also applied for public assistance at that time. When Ms. W. finally reached her brother, he told her that he was not in a position to help her and Chloe as he was getting married and looking for a place for himself and his fiancé. Ms. W. explained to the Court that she could not ask her parents for any more help since both of them had paramours who were not fond of her and Chloe, and were being influenced by her ex-husband. She testified that she was also embroiled in some type of legal battle with her father and that they no longer communicate. She further testified that her mother's paramour isolated her mother from the family and has been helping her ex-husband acquire drugs. Ms. W. elaborated that both of her parents' paramours have financial incentives motivating them to keep her and Chloe out of her parents' lives.
Ms. W.'s brother and his wife are the current foster parents of Chloe. Ms. W.'s brother was not called as a witness by either side, although apparently available and in court during part of these proceedings.
Ms. W. testified that she is currently living in a hotel run by the New York City shelter system in Far Rockaway where she lived with Chloe until Chloe's removal. She told the Court that the City of New York intervened to harm them, not to help them. She elaborated that her case manager has been mistreating her and caused her public assistance account to be closed. Ms. W. denied the petition's allegations and told the Court that she has been compliant with shelter rules and regulations, permitting shelter personnel to come into their room and interact with her and Chloe. She stated that she was upset when her public assistance account was closed. She also stated that she complained about bed bugs in her shelter room, but the shelter did nothing about it, exterminating other rooms, but not hers.
Ms. W. testified that on the day and night before the removal, she and Chloe spent hours walking and traveling by public transportation looking for attorneys and alternate places to live. Her search proved futile. She told the Court that she ended up in Rufus King Park where Chloe played. It got late and although Ms. W. wanted to go back to the shelter where she had been staying, she was unable to do so. She stated that she rarely took the bus and found out that the bus to take them back to the shelter in Far Rockaway was no longer running at that hour. As a consequence, she spent the overnight hours on the streets, ending up in a Dunkin' Donuts coffee shop in Jamaica with Chloe asleep in her arms.
It is unclear to the Court how Ms. W. would retain an attorney or find an alternate place to live since she appears to have been without funds.
Ms. W. testified that Chloe is medically healthy. She told the Court that Chloe had a blister on her foot when she came into the custody of ACS because Chloe wanted to put on her running shoes without socks, and she let her. She stated that she home schools Chloe. She elaborated that she has a college degree so she is capable of teaching Chloe. Ms. W. testified that she has been taking Chloe to the Library, and practicing sight words with her in an effort to teach her to read. She also uses an online learning program called "ABC Mouse" to teach Chloe, who would be entering Kindergarten this Fall. Ms. W. testified that if Chloe is returned to her, she intends to continue to teach Chloe at home. She told the Court that she has not contacted the Department of Education about home schooling her daughter because she does not have to. Ms. W. stated that if Chloe were returned to her, she would go back to the shelter and stay in another room with her.
Ms. W. told the Court that she is cautious about whom she comes in contact with, and what information she provides, because everyone is aligned with her ex-husband and he is a hacker who has been tracking her movements in an effort to complicate her life. She explained that when she met with Doctor Cort, Chloe had been removed and she felt worried and she was confused about the process so that figured into her behavior during the imminent risk assessment.
Jennifer Herbst, a case manager employed at a families with children shelter in Far Rockaway run by the Department of Homeless Services, testified that she has a Bachelors degree in psychology. She told the Court that she is the case manager assigned to Ms. W. and Chloe, and one of the people Ms. W. accused of mistreating her. Ms. Herbst testified that she met Ms. W. at the end of January, 2017 and started meeting with her every two weeks, beginning in the middle of February, 2017. Ms. Herbst testified that upon her first meeting with Ms. W., she had concerns about Ms. W.'s mental health. She told the Court that Ms. W. "would go on tangents, [] have delusions and what appeared to be hallucinations." Ms. Herbst gave several examples of Ms. W.'s delusions, including Ms. W.'s stated belief that shelter staff were speaking with her ex-husband and hacking the public assistance and human resources administration systems, thereby closing her cases. Ms. Herbst told the Court that Ms. W. said that her ex-husband was trying to find her and Chloe, and harm them. Ms. W. also told Ms. Herbst that she is extremely wealthy and people are trying to steal money from her.
See W. Tr. at p. 57-58 (08/03/17).
Ms. Herbst testified that as time went on, Ms. W.'s behavior deteriorated, that she became non-compliant with shelter rules and refused to sign required documents. Ms. Herbst stated that her ability to have conversations with Ms. W. became increasingly challenging, and that Ms. W. would rant more easily when triggered by someone who tried to talk to her about certain subjects she did not want to discuss. Ms. Herbst told the Court that Ms. W. would become aggressive towards her - getting close to her, raising her voice, and pointing her fingers at her. Chloe was present for these meetings and would tell her mother to stop, or start crying. Ms. Herbst's own attempts to calm Ms. W. at the meetings were unsuccessful. During a meeting at the Department of Homeless Services, Ms. W. got into a tug of war with a piece of paper, which she would not return. The scenario turned into a scuffle after which Ms. W. was removed, escorted out of the building by security, and banned from further Department of Homeless Services meetings. Chloe was present at that meeting and was described by Ms. Herbst as upset.
Ms. Herbst testified that Ms. W. was required to keep her public assistance case open in order to comply with shelter rules and regulations. She told the Court that she provided Ms. W. with a residency letter and told her to reopen her public assistance account, which had closed. Ms. Herbst stated that Ms.W.'s response was that the case should be reopened without her and she should be issued an apology letter. Ms. Herbst testified that she reminded Ms. W. that in order to remain in the shelter, she needed to maintain a public assistance case, but that did not matter to Ms. W.. Ms. Herbst told the Court that this was concerning to her because public assistance allows for recipients to have money for provisions which the shelter does not provide. It also allows for food stamps, cash, and if Ms. W. was mandated to work, she would be entitled to car fare, and day care for Chloe. Ms. Herbst finally had to hold a meeting with Ms. W., with a supervisor present, about Ms. W.'s failure to open her public assistance case.
Ms. Herbst testified that Ms. W. would not comply with other shelter rules and regulations either. For example, some shelter residents, including Ms. W., complained about bed bugs, and an exterminator was called. Ms. Herbst told the Court that the exterminator sprayed everyone's room, but Ms. W.'s, because she would not comply with the shelter's protocol for extermination.
Ms. Herbst testified that Ms. W., Chloe, and their shelter room had an odor that became worse over time. The family's hygiene was horrible. They were not properly dressed for the weather and their clothes were smelly. Ms. Herbst told the Court that Chloe's hair was not combed, her nails were dirty and she sometimes had marker, food or dried saliva on her face. Ms. Herbst stated that Ms. W. washed her clothes in water only, without soap. This was due to Ms. W.'s failure to reopen her public assistance case. Ms. Herbst explained a connection between reopening Ms. W.'s public assistance and receiving amenities including soap and detergent from the hotel. Ms. Herbst became concerned because Ms. W. did not have a monetary source and it did not appear that she cared.
The evidence showed that the New York City Department of Homeless Services refused on policy grounds to provide Ms. W. and her toddler with toiletries to keep themselves clean unless they maintained a public assistance case. That agency employs over 2,000 workers and maintains a yearly billion dollar budget. See http://www1.nyc.gov/site/dhs/about/inside-dhs.page. Its website proclaims its mission is to provide "coordinated, compassionate, high-quality services and supports." Id. Ironically, Ms. W.'s inability to keep herself and her daughter clean became allegations in the petition against her. The policy behind this refusal to provide with Ms. W. with toiletries certainly does not comport with the New York City Department of Homeless Services' stated mission.
Ms. Herbst testified that even Chloe's behavior had changed over time. She described Chloe as a bright child who would talk to staff when she began staying at the shelter and who would socialize with other children. Over time, Chloe would not respond to shelter staff, instead looking at them without speaking, or looking down. Ms. Herbst told the Court that shelter staff attempted to engage Chloe, to no avail. Chloe would play with other children only when Ms. W. let her, which was not often. Ms. Herbst testified that she hoped that Ms. W. would get mental health treatment. She suggested to Ms. W. that she see a therapist, but Ms. W.'s response was that she was not in need of help. Ms. Herbst testified that on the evening of July 27, 2017 into the morning of July 28, 2017, Ms. W. and Chloe did not return to the shelter.
DISCUSSION
New York State Family Court Act §1028 provides parents with a vehicle to request the return of a child who has been temporarily removed from their care. See NY Fam. Ct. Act § 1028 (McKinney's 2017); see also Price Mc. v. Wendell Mc., 88 AD3d 885, 886 (2d Dep't 2011). The statute dictates that a hearing shall be held to determine whether the child should be returned to their parent. See NY Fam. Ct. Act § 1028 (McKinney's 2017); see also Price Mc., 88 AD3d at 886.
At the hearing, a parent must establish that returning their child to them does not present an imminent risk to the child's life or health. See NY Fam. Ct. Act § 1028 (McKinney's 2017; see also Amber Gold J. v. Vanessa J., 59 AD3d 719, 719 (2d Dep't 2009) (imminent risk standard); Solomon W. v. Denise Y., 50 AD3d 912, 912 (2d Dep't 2009) (same). Hearsay evidence is admissible at a § 1028 hearing. See NY Fam. Ct. Act §1046(b)(iii),(c) (McKinney's 2017); see Matter of N. Children, 86 AD3d 572, 573 (2d Dep't 2011).
The Court found both Doctor Cort and Jennifer Herbst to be forthright and credible. Both were disinterested witnesses who had no motive to lie. Doctor Cort recounted her difficult encounter with Ms. W. during Ms. W.'s court-ordered imminent risk assessment. Ms. Herbst testified in the context of her humane interaction with Ms. W., which she told the Court was met with accusations and resistance. Ms. W. exhibited an inability to focus on questions she was asked and answer them with a proper response. Many of her answers were confusing and riddled with circular reasoning. She denied facts that were borne out by other evidence.
For instance, Ms. W. stated that she was not required to maintain a public assistance account in order to comply with shelter rules and regulations, but Ms. Herbst provided testimony to the contrary. --------
The Court finds that Ms. W. is a sympathetic individual. She is a young, educated, divorced single mother who is adrift in the sea of life without a vessel. She appears to have been the victim of domestic violence at the hands of her ex-husband. She seems to be estranged from her family. She has no discernible source of income, travels from place to place, and relies on what she described as charity from churches and strangers. She lives a nomadic existence. She has moved about the country, and even out of it, in a endless quest to find what she considers a safe, appropriate place to live. Her motive for doing so is to avoid what she believes to be the watchful eye of her ex-husband, whose reach she thinks controls every contact she makes. Although Ms. W. believes that her ex-husband was the impetus for her current legal involvement, it is her delusional notions about him that caused her to come to the attention of ACS. For example, Ms. W.'s refusal to assist in the reinstatement of her public assistance account prevented her from obtaining available public resources for herself and Chloe. Sadly, Ms. W.'s gripping fear of her ex-husband keeps her from establishing herself in one place where she can make positive changes to create a better life for her and, more importantly, her daughter. She can not seem to get out of her own way.
This Court has great empathy for Ms. W. She is, in many ways, a tragic figure who means no harm, but a decision in this case can not be based upon empathy. Rather, this Court's decision must be based on evidence and applicable law. Specifically, this Court must decide whether the return of Chloe to her mother presents an imminent risk to Chloe's life or health. This Court finds that is does. What could be couched as Ms. W.'s sense of privacy about her life and mistreatment by city agencies is much more than that. The evidence supports that Ms. W. is troubled by a psychological condition that is beyond her control. Doctor Cort testified that Ms. W. possesses psychotic symptoms, including persecutory delusions and thought disorientation, which are affecting her daily life, and her daughter. It is Doctor Cort's position that Ms. W. engage in mental health treatment prior to Chloe's return to her, and that there is currently an imminent risk to Chloe's well-being. The Court agrees. When testifying, Ms. W. exhibited the symptoms about which Doctor Cort spoke. Ms. W.'s testimony incorporated the delusions which govern her life - delusions about her ex-husband, delusions of grandeur, and delusions of persecution. She is paralyzed, except when she is acting on these delusions. Five year old Chloe is a helpless prisoner of her mother's mental state.
The evidence showed that Ms. W.'s compass in life is her firmly held belief that her ex-husband is tracking her movements and is in collusion with everyone she comes in contact with. She also has a sense that everyone is against her and is bent on mistreating her. The proof established that Ms. W. refuses to listen to anyone, and sees those who try to help her as enemies. For example, Ms. W. complained of bugs in the shelter, but when an exterminator was arranged and she was told to comply with a protocol that protects her belongings, she declined to follow the protocol. As another example, Ms. W. refused to assist in reopening her public assistance case even though she had initially opened one when she arrived in New York. Ms. W. blamed others for her account being closed and told the shelter case manager that her public assistance should be reinstated, and she should be provided with an apology. She has repeatedly failed to comply with shelter rules and regulations, and with ACS.
Significantly, Ms. W.'s condition appears to be worsening. On the day prior to, and into the wee hours of the morning of, Chloe's remand, Ms. W. wandered the streets of Queens, in search of new housing and a lawyer, by public transportation and on foot, with Chloe in tow, who eventually fell asleep in her arms. The evidence established that Ms. W. is in need of a full psychiatric evaluation and thereafter, any recommended mental health treatment. Under these facts, were Ms. W. to continue without treatment, at best, Chloe would either grow up in a homeless shelter and never leave, or continue to live a transient existence with her mother. The Court declines to speculate as to any other possibilities. For all of these reasons, the Court finds that an imminent risk exists such that Chloe should not be returned to her mother at this time. See Amber Gold J., 59 AD3d 719 (2d Dep't 2009); see also Solomon W., 50 AD3d 912 (2d Dep't 2009).
Accordingly, the Court denies Ms. W.'s §1028 application with the following provision: Ms. W. may move to reopen this proceeding before this Court upon proof that she is successfully engaged in mental health treatment, is taking any required medication, and has applied for public assistance.
This constitutes the decision, opinion, and order of the Court. Dated: Jamaica, New York August 10, 2017 JOHN M. HUNT, JUDGE FAMILY COURT - QUEENS COUNTY