Opinion
No. NN-xxxxx-22
12-12-2023
In the Matter of Liam V.
Hetal Shah, Esq., Administration for Children's Services. Amanda Katz, Esq., Counsel for Respondent Johnson V. Daniella Mancini, Esq. Counsel for Respondent Lafayette B. Lisa Podemski, Esq. Attorney for the Child
Hetal Shah, Esq., Administration for Children's Services.
Amanda Katz, Esq., Counsel for Respondent Johnson V.
Daniella Mancini, Esq. Counsel for Respondent Lafayette B.
Lisa Podemski, Esq. Attorney for the Child
Erik S. Pitchal, J.
By order to show cause (# 3) dated September 28, 2023, petitioner moves for an order suspending the respondents' visitation with Liam, following the death of his sister, Ella. In consideration of the motion, the Court has reviewed the supporting papers of the attorney for the child, dated October 20, 2023; the opposition papers of respondent Lafeyette B., dated October 20, 2023; the opposition papers of respondent Johnson V., dated October 20, 2023; and movant's reply, dated October 27, 2023. The Court also considered supplemental reports by HeartShare-St. Vincent's Services foster care agency, dated November 1, 2023, and by ACS, dated November 2, 2023. There being no disputed issues of fact in connection with the motion requiring an evidentiary hearing, the motion appearance of November 3, 2023, was for oral argument only, following which the Court reserved decision. For the following reasons, the motion is granted in full.
Visitation with Liam has been temporarily suspended by Court order since September 18, 2023, when the Court failed the trial discharge. See infra at 17. At that time, the Court directed petitioner to file a motion no later than October 2, 2023, in the event ACS wished to keep the suspension in place. When ACS did so by filing the instant order to show cause, the Court granted interim relief, directing that visits remain suspended pending final disposition of this motion.
CASE HISTORY
The August 16, 2022, Petition
The case began on August 16, 2022, when ACS filed a petition against Ms. B. and Mr. V. charging them with abuse and neglect of their children Liam (then 11 months old) and Ella (then 3 weeks old). Specifically, ACS alleged that the parents brought both children to Maimonides Medical Center (hereinafter "Maimonides") on August 11, 2022, saying that Liam had hit his head on the wall when Ms. B. threw objects at and pushed Mr. V., who was holding Liam at the time. The hospital examined both children and found Liam had no injuries. However, Ella had leg and skull fractures, as well as a small hemorrhage on the left side of her brain, injuries that were said to be consistent with non-accidental trauma. The parents were said to have no credible explanation for her injuries. The petition also charged Ms. B. with perpetrating acts of domestic violence against Mr. V. in the children's presence, noting the above-referenced incident. (Petition - Abuse Case, dockets NA-15241-42/22, dated Aug. 16, 2022, at Addendum I.)
On August 16, 2022, the parties were arraigned on the allegations in the petitions, and the Court assigned counsel to each parent and heard preliminary applications. Petitioner sought a remand of the children to foster care, indicating that their paternal grandmother, Elsa S., had been identified as a kinship resource and had received agency approval. The attorney for the children (hereinafter, "the AFC") supported the remand application. The parents did not contest the remand request, which was granted by the Court. The parents asked that the remand be restricted to Ms. S.'s home, which the Court granted, meaning that moving the children to a different foster home would require Court approval, absent an emergency (in which case the children could be moved first, with a report filed with the Court thereafter). (Remand Order dated Aug. 16, 2022, at ¶ 3(a).) ACS asked that all visits be supervised by the agency. The parents asked for visits to be supervised by any available family member or friend who passed an ACS background check and assessment. The AFC asked for approved resource visits to be "strongly considered." ACS indicated that it would support an order which left discretion up to the agency to determine whether to utilize approved resources, without further Court order. After hearing argument on the visitation matter, the Court ordered as follows:
ACS contracts with non-profit foster care agencies to train, certify, and supervise foster homes, and to provide services to parents and their children who are placed in foster care. When children are initially placed in foster care, it can take 30 days or more for ACS to transfer the case to a specific foster care agency; in the meantime, ACS continues to manage the case. In Family Court cases, the term "agency," as in "agency supervised visitation," is understood to include both ACS and the foster care agency, depending on which entity is actively managing the case at any given time.
Individuals who are cleared by ACS for the purpose of supervising parent-child visitation are referred to as "approved resources." The Court understands that the process of approving resources involves a criminal background check, and a check of the State Central Registry of child maltreatment. Additionally, agency staff meet with the proposed resource to instruct them on what is expected of a visitation supervisor, and to determine if the person is suitable and appropriate to supervise the specific case, given what is known about the children, their ages, and any special circumstances. When the Court permits visits to be supervised by approved resources, it typically allows for more flexible and frequent visitation. Visits that are "agency supervised" typically occur at an ACS or foster care agency office, in a less child-friendly environment. Space, staff, and logistical constraints usually mean that agency supervised visits only occur twice per week.
The parents shall have 4 agency supervised visits. If there is no documented safety concern, then visits shall be supervised by any agency-approved resources.(Remand Order dated Aug. 16, 2022, at ¶ 5.)
The September 12, 2022, Stipulation
On September 12, 2022, the parties presented a signed stipulation to the Court. The agreement provided that henceforth, Mr. V. would have agency supervised visits only, but that the agency would have discretion to expand his visits. The Court so-ordered the stipulation. (Order on Consent dated Sept. 12, 2022.)
The November 9, 2022, Conference
The matter proceeded to a preliminary conference, which was conducted off-the-record by the assigned judge's court attorney on November 9, 2022. The parties reviewed the state of pre-trial discovery; the parents' service plans; the children's placement and medical conditions and care; and parent-child visitation. The foster care agency at the time, Lutheran Social Services of New York (hereinafter "LSS"), filed a written report.
The agency described the service plan it was offering to the parents in light of the allegations in the petition. Mr. V. was being asked to complete a parenting skills course; an anger management course; and an abusive partner intervention program. The agency informed the Court and the parties that he had enrolled on September 8, 2022, at Brooklyn Community Services's "Fatherhood Program," which covered all three identified service requirements, and he was on track to complete the program the next day, November 10, 2022. Ms. B. was being asked to submit to a mental health evaluation and engage in any clinically reasonable treatment recommendations; to engage in domestic violence counseling; and to complete a parenting skills course. As of November 9, 2022, she was already underway with the first two items, at Kings County Hospital and the Jewish Board, respectively.
The November 9, 2022, conference was the first time the Court learned that the children had been moved from Ms. S.'s home to a different kinship foster home, that of their maternal grandmother, Loretta B.. This was prompted by "[a]n incident which led to an injury to Ella while Mr. V. was visiting" at Ms. S.'s home. (LSS report dated Nov. 3, 2022, at 3.) Elsewhere in the report, reference was made to Ella having had tongue surgery, and an issue with the stitches leading to the need for a second operation. (Id. at 2.) No other details were provided concerning the "incident" or how Ella's tongue was injured.
The agency also reported that Liam was being followed by a cardiologist for an irregular heartbeat. He was being referred to Early Intervention to address developmental delays and to the Attachment Behavioral Catchup ("ABC") program. In addition to the tongue surgery, Ella was being followed by a neurologist for seizures, and a gastroenterologist for being underweight.
Regarding visits, Ms. B. had been visiting the children, supervised, on a regular basis in Ms. S.'s foster home (on a separate schedule from Mr. V.) and, since they had been moved to her own mother's home, she visited every weekend, supervised by the children's maternal grandmother or other maternal relatives who had been approved. In accordance with the September 12, 2022, stipulation, Mr. V. was offered agency supervised visits, but according to the agency, he had declined these due to his work schedule. Ella had been in the hospital due to the tongue surgery, and the parties discussed how he might be able to see her while there, considering that he was about to finish his services the next day. He indicated that he had left his job and would now be available to come to the agency, and a schedule was set up. (LSS report dated Nov. 3, 2022, at 3.)
Additionally, petitioner's counsel was reminded that the Court had restricted the children's remand to Ms. S., and that any change required a subsequent order, with information being provided to the assigned judge as to why the children had to be moved.
The November 30, 2022, Conference
The court attorney convened a follow-up preliminary conference on November 30, 2022. Regarding discovery, the Court had signed all proposed subpoenas the day they were presented, November 14, 2022. Regarding services, Ms. B. was attending mental health treatment at Services for the Underserved ("SUS") with a counselor who had been provided the petition in the case, and she was attending domestic violence services at the Jewish Board. Mr. V. had completed the BCS Fatherhood Program and had signed a release allowing the agency to speak to the provider, but the agency stated that it had not spoken to the provider since October 21 and was trying to confirm his completion.
The children were said to be doing well with their maternal grandmother, and the court attorney again reminded petitioner's counsel that he needed to file something with the Court to address the placement issue, in light of the restrictive remand order from August 16, 2022. The parents reported difficulties with visitation, as it appeared there was tension between them and the maternal relatives and there were disagreements about the schedule. The agency agreed it would inform the parents of all the children's medical appointments and invite them to attend.
The court attorney scheduled the case for trial, to commence March 17, 2023.
Mr. V.'s Request for a 1028 Hearing
On December 29, 2022, Mr. V. filed a request for the return of the children to his care, pursuant to Family Court Act § 1028. The assigned judge was on vacation, and the covering judge put the matter on the calendar for January 4, 2023. Given that some of the medical records had not been obtained, and that expert witnesses were likely required but not available to testify right away, all parties agreed that instead of an immediate evidentiary hearing, the January 4 appearance would be a conference with the Court.
During the January 4, 2023, conference the parties agreed that the fact-finding hearing should be combined with the 1028 hearing. ACS indicated the exhibits it intended to offer at the hearing. The parents at that point had evidence for the 1028 portion, including Mr. V.'s certificates of completion for all his services at BCS, copies of which were provided to the agency in court that day; however, the parents were not ready for fact-finding as they were still reviewing extensive medical discovery and considering options for potential expert witnesses.
The rest of the January 4, 2023, conference focused on significant disputes between the parents and the maternal relatives regarding visitation. Questions were also raised about the service plan and whether, given the children's ongoing specialized medical needs, LSS had the appropriate level of expertise to manage the case. The agency reported on disputes between the maternal aunt Mr. V. at the visits and observed that Ella sometimes cried while her father held her. The attorney for the child suggested that the family be referred for clinical visitation, so that the parents could work on forming a positive attachment with the children by a properly-trained early childhood professional.
Finally, petitioner's counsel made a specific request to the Court to vacate the restrictive remand order of August 16, 2022; however, no party requested the Court to enter a new order restricting the remand to the maternal grandmother's.
At the end of the conference, the Court entered the following order:
1) ACS is directed to explore a change of foster care agency. In particular, the Court determines that New Alternatives for Children may be a better fit for this case based on its need for:
a. More accurate service planning and referrals for appropriate services;
b. Monitoring the children's specialized medical care;
c. Specialized clinical visitation services.
2) Each parent shall be entitled to visit the children at least three times per week.
a. Ms. B. may continue to visit supervised by her family members in the foster home, but if she requests it, the agency shall provide agency supervised visits and/or arrange for visits supervised by another approved resource.
b. At least one visit per week shall be for both parents visiting together.
c. To the extent practicable, agency-supervised visits shall take place in the community so that the parent(s) and child(ren) can engage in activities together.
d. To the extent practicable, visits shall be scheduled during the children's non-napping, awake hours.
3) Both parents shall be invited to attend all medical appointments, with one week's notice absent emergency/urgent care.
4) Paragraph 3(a) of the Remand Order dated August 16, 2022, is hereby vacated.(Order on Motion dated Jan. 4, 2023.) The matter was adjourned to January 19, 2023, for a subsequent conference, to see if there would be a resolution to the litigation and to follow up on the issues identified on January 4.
Additional Pre-Trial Proceedings
At the January 19, 2023, conference, Ms. B.'s counsel announced that she would join Mr. V.'s request for the return of the children. The parties agreed to use the previously-selected fact-finding date of March 17, 2023, to commence the combined fact-finding/1028 hearing. The rest of the conference was devoted to exploration of visitation and service plan issues. LSS was still on the case because a formal request for agency transfer had not yet been submitted to the relevant office at ACS that assigns foster care agencies.
By this time, it was known to all parties that the parents still lived together and wished to plan, together, for the children to be returned to them. With the agency's approval, and pursuant to the Court's order of January 4, 2023, they had been visiting the children together.
Regarding services, in its report to the Court dated January 18, 2023, LSS noted that it had confirmed Ms. B.'s engagement in mental health services and parenting skills development. A separate letter from the Jewish Board submitted to the Court summarized the parenting skills curriculum and stated:
Ms. B. has been engaged and participatory as we explore these concepts. She has demonstrated an ability to reflect on her own experiences and has shared insights about her personal life with the group. Her reflections have demonstrated her deep love for her children and her desire for her relationship with her children to be safe, secure, and nurturing.(Juliana Stevenson letter, The Jewish Board, dated Jan. 16, 2023 at 2.) Regarding Mr. V., LSS stated that it had been unable to obtain his certificates of completion from BCS, without acknowledging that the certificates had been provided in the courtroom two weeks prior. In the discussion on the record, it was confirmed that LSS was not asking Mr. V. to engage in any additional services, however.
LSS also reported on the many ongoing tensions between the parents and the maternal relatives around visitation which was occurring at the Brooklyn Public Library, supervised by agency staff. (Additional visits were still being supervised in the foster home by the maternal relatives.) The report noted the foster parent's repeated late arrivals, unsolicited advice to the parents, and general interference in the visits. Mr. V. seemed inattentive at times. LSS also observed that both parents "displayed love and affection" towards both children (LSS Report dated Jan. 18, 2023, at 4); the parents praised Liam as he showed off his new walking skills (id. at 5); the parents made sure the children's "physical, emotional, and recreational needs were met" (id. at 6); and Mr. V. was able to calm Liam when the child was crying. (Id. at 5.)
At the close of the January 19, 2023, conference, the parents asked for an order permitting them to have brief periods of unsupervised visits. Ms. B.'s counsel argued that she had been making progress in her services. Mr. V.'s counsel noted that he had completed all mandated services, and that the agency, even when asked, did not ask him to do anything else. The attorney for the child supported the application but reiterated her request that the agency put clinical visitation services in place. ACS opposed. The Court denied the request for unsupervised visits, citing among other things the seriousness of Ella's injuries and the pre-trial posture of the case.
Specifically, the parents asked for what is known in Family Court parlance as "sandwich visits," meaning a period of unsupervised time - usually no more than an hour or two - sandwiched between periods of supervised time, immediately preceding and following the unsupervised time. In this instance, the request was for the unsupervised time to be as brief as 15 to 30 minutes.
The parties reconvened before the Court on February 15, 2023, for a settlement conference. The status was much the same as it had been a month prior. Ms. B.'s service providers submitted positive reports about her progress. LSS was still on the case and still claimed it did not have certificates proving that Mr. V. had completed his services (even though these had been provided in court on January 4). The children were still seeing medical specialists. Visitation continued with the same basic observations as before - the parents did well with the children but were easily frustrated; they blamed the foster parents for spoiling the children and criticized Liam as "lazy" when he did not walk. The attorney for the child inquired as to efforts by the agency to refer the family to clinical visitation services, but LSS said they were waiting for the new agency to pick up the case and take care of that. The parents renewed their request for "sandwich" visits, with the AFC again supporting and ACS opposing. The Court denied the request.
Petitioner's counsel informed the Court that HeartShare-St. Vincent's Services had agreed to take the case, but the transfer was not final yet.
On March 6 and 15, 2023, the assigned judge's court attorney conducted pre-trial conferences limited to the topic of trial preparation. Extensive discussions were had concerning the identity of expert witnesses and their availability to testify; the nature of the medical evidence and the manner in which it would be presented; and issues relating to the order of witnesses. All efforts were made to ensure that the matter was trial-ready, and that once the hearing began, it would proceed smoothly.
Combined Fact-Finding and 1028 Hearing
All parties and counsel were present in Court on the previously-selected date of March 17, 2023, for the combined fact-finding and 1028 hearing. By this time, HeartShare St. Vincent's Services ("HSVS") had taken over as the foster care agency, and it reported that the first visit their staff had supervised had gone well. HSVS also noted that the parents attended a pediatric appointment with the children, but Mr. V. became angry when the maternal grandmother offered unwanted advice; the agency followed up with both of them. HSVS understood that Mr. V. had already completed his services and there was no indication that they were asking him to do anything further. HSVS was aware that Ms. B. had previously completed a parenting skills program and was actively engaged in domestic violence counseling and mental health treatment. HSVS reported that the children's pediatrician had referred them to Early Intervention, and the agency was attempting to refer the parents to the ABC program.
In anticipation of the hearing going forward, ACS counsel prepared and circulated trial exhibits. These consisted of:
ACS counsel had provided a version of the proposed trial exhibits to respondents' counsel and the AFC previously, and the parents' attorneys filed written objections to portions. The Court adjudicated these evidentiary matters and issued a written decision and order dated March 16, 2023, granting some of the objections and denying others. The Court understands that the final version of the exhibits submitted by petitioner conformed to the Court's rulings.
1) Certified and delegated records from Maimonides concerning Liam;
2) Certified and delegated records from Kings County Hospital, concerning Ms. B.;
3) Certified and delegated FDNY/EMS records;
4) The curriculum vitae of Dr. Ingrid Walker-Descartes;
5) Domestic Incident Reports dated April 12, August 11, and December 30, 2022; and
6) NYPD Body-Worn Camera footage from August 11, 2022.
However, when the case was called on the record on March 17, 2023, the exhibits were not taken into evidence and no witnesses testified, because in lieu of a hearing the parties presented the terms of a negotiated settlement. The agreement consisted of four parts:
1) The parents admitted to neglecting the children in full satisfaction of the pending charges.
In this case, all parties, including ACS and the AFC, agreed that it would be a satisfactory outcome if the parents admitted to neglecting the children instead of having a trial on the question of whether they abused them. In layperson's terms, one could say that ACS and the AFC agreed to let the parents plead guilty to neglect in exchange for the abuse charge being dropped. The parents admitted in open court to neglecting the children in the following manner:
"On or about August 11, 2022 the child Ella, who was in the sole care of the respondent parents, was found to have injuries in various stages of healing, including fractures in her legs and skull, injuries that can be indicative of non-accidental trauma, and neither parent were able to provide an explanation for these injuries. As a result of the injuries to Ella, the subject child, Liam, is a neglected child or in danger of becoming a neglected child."
2) All parties, including ACS and the AFC, agreed to immediately commence sandwich visits.
The visits would occur two or three times per week, and the unsupervised portions of the visits would total a maximum of six hours per week, spread over however many visits occurred. The visits would begin and end at the agency. The parties agreed that if the agency in its discretion determined that the parents could safely have more than six hours of unsupervised time per week, no further Court order would be required, provided that the AFC was notified and had a reasonable opportunity to object prior to the expansion.
3) All parties agreed to adjourn the matter for a dispositional hearing.
4) All parties, including ACS and the AFC, agreed that the standard of proof the Court would apply at the dispositional hearing would be the "imminent risk" standard used in 1028 hearings, and not the "best interests of the child" standard used in dispositional hearings.
The genesis of this agreement was that the parents had been entitled to litigate the 1028 hearing, but were settling the fact-finding without a judge ruling on the 1028 application; the 1028 request was withdrawn in consideration for the dispositional determination being made with the 1028 standard.
In a dispositional hearing, the standard for all decisions is the best interests of the child. Matter of Telsa Z., 84 A.D.3d 1599 (3d Dep't. 2011). In a 1028 hearing, ACS has the burden of proving that the children would be at imminent risk of harm if returned home, that no orders of protection short of continued removal can adequately mitigate that risk, and that the risk of returning home outweighs the harm of continued separation from their parents. See Nicholson v. Scopetta, 3 N.Y.3d 357 (2004).
In addition to the June 15 date for disposition, the Court also set a date with the court attorney for a conference, to aid the parties in either settling (or narrowing the contested issues for) the disposition, or to identify the witnesses and exhibits for any contested hearing.
The Pre-Disposition Conferences
The parties gathered for two off-the-record conferences with the court attorney in between the parents' plea in March and the subsequent dispositional hearing in June. HSVS submitted written reports for each conference, both of which were reviewed by the Court at the time of submission. In its April 24, 2023, report, submitted for a conference of the same day, HSVS provided information about a neurology appointment for Ella on March 14, 2023, which was attended by the parents as well as the maternal aunt (who also lives in the foster home with the maternal grandmother and cared for the children when the grandmother was at work):
During the appointment with the Neurologist on 3/14/2023, Case Planner received a text message from [maternal aunt] that the parents were withholding Ella's bottle and that Mr. V. (BF ) was "terrorizing" Ella. Case Planner video called during said appointment and observed Mr. V. was walking Ella through the hallways to help calm her down and that Ella would stop crying when she was being carried by Mr. V. (BF). Case Planner inquired and as per Mr. V. (BF) who [sic] shared that he didn't give Ella the bottle while she was crying because he did not want her to choke on the bottle. Case Planner did observe him give Ella the bottle when she stopped crying.(HSVS report dated April 24, 2023 at 2.) The agency also reported on the sandwich visits that had been taking place since the parties' agreement and Court order of March 17:
During the supervised portions of the visits, Case Planner has observed that Ms. B. (BM) and Mr. V. (BF) interact appropriately with the children; providing them with their food/bottles, changing diapers as needed and remaining engaged with the children. Case Planner has observed that Ella often cries and will only calm down if she is picked up and the parents have shared that they are concerned about Ella's lack of self-soothing skills. Case Planner also observed at times that Ella would refuse to finish her formula bottles, but typically finishes her pureed baby food. Liam eats well during the visits and always appears happy and ready to play when Case Planner observes him with his parents. When the weather permits, the parents take the children to the Cadman Plaza Park and Columbus Park for Liam to play in the grassy areas. Both parks are a short walking distance from the agency. During the final supervised portion of the visits, Case Planner observes the children for any potential bruising, marks, injuries, or potential distress. There have been no concerns at this time. During drop-off and pick-up times, Case Planner often must step in due to tension between the [maternal aunt] and the parents. For example, the [maternal aunt] has attempted to ask that the parents not be allowed to have the children in the sun for any amount of time, and not be allowed to be with the children without facial masks. The [maternal aunt] has also attempted to say that the children were withheld from her after a visit had ended, although Case Planner observed that the parents were waiting with the children until the taxi arrived to take the children home and when the taxi arrived, the parents immediately left the premises and did not withhold or prevent the children from going home.(Id. at 2-3.) The agency also reported that both parents had completed all requested services, with Ms. B. still engaged in counseling, and that both parents had attended all of the children's medical appointments, except for one which they had forgotten.
Foster care agencies commonly abbreviate "birth father" as "BF" and "birth mother" as "BM" when writing reports.
Based on the above information, ACS and the AFC agreed to expand the parents' visitation with the children. As the Court's order of March 17, 2023, had given ACS the discretion to expand without further specific Court authorization where the AFC was not objecting, no written order was issued following the conference. All parties came to an understanding that the parents would begin having unsupervised visits from 10am to 5pm, two days per week. Ms. B.'s attorney asked if the Court could also provide discretion to ACS to commence overnight visits without further Court order. It was explained that the Court would not enter an order giving ACS that discretion, but that if ACS and the AFC did later agree to start overnights, the parties could submit a stipulation with a report and the Court would consider so-ordering it. The rest of the conference was spent discussing the likely evidence each party would proffer at the upcoming dispositional hearing.
The wording of the Court's March 17, 2023, visitation order gave ACS discretion to expand the parents' unsupervised time from the Court-set floor of six hours per week but did not give ACS discretion to commence overnight visits.
At counsel's request, a second off-the-record, pre-dispositional conference with the court attorney was held on May 30, 2023. The agency's report dated the same day provided information about the ongoing sandwich visits occurring twice per week with seven hours of unsupervised time, some of which took place at the family's residence:
Both parents are always early for the visits. The children are typically dropped of[f] 30-60 minutes late to all visits. Since the last hearing [sic] on April 24th, the parents have attended all visits except 5/16/23 and 5/18/23. The visit on 5/16/23 was canceled due to Ella's ER visit and parents were made aware of the situation. On 5/17/23 CP checked in with the [maternal aunt] about Ella and it was reported that she was gaining her appetite back although still lethargic. Ella did not need to return to the ER but the [maternal grandmother and maternal aunt] did not show up to the visit on 5/18/23 with the children and did not notify the CP. The CP shared with the parents and [maternal grandmother] that make-up visits could be accommodated on 5/22/23 and 5/24/23, and there were no objections to these dates at that time. The [maternal aunt] texted the CP on 5/21/23 that the children would not be at the visit on 5/22/23, and did not state a reason. CP reached out on 5/22/23 to ask if Ella was doing alright and received no response. During the supervised portions of visits, CP has observed that Ms. B. (BM) and Mr. V. (BF) interact appropriately with the children; providing them with their food/bottles, changing diapers as needed and remaining engaged with the children. CP has observed that Ella often cries much less often [sic] during visits, although due to her teething she will get fussy if she doesn't have something to chew on. CP has observed that Ella typically drinks two and a half bottles during her visits, and typically finishes her pureed baby food. CP has observed that Liam normally eats most of the snacks that are packed for him and will eat some of a full meal that is packed for him. The parents keep baby food and regular food for the children at their own home as well. When the children arrive back at the agency for the final portion of the supervised visits, CP observes the parents offer them more snacks/bottles and observed the children ignore these offerings. The [maternal aunt] has said the parents are not feeding the children, and the CP has shared the observations of the children being offered food and not appearing hungry when they return to the agency. The parents are authorized to take the children to their apartment during their unsupervised portions of the visit. The home has safe sleep arrangements for both children. The parents have shared that the children, especially Ella, seem to sleep quite a lot during visits and are concerned they aren't sleeping well at the foster home. CP did discuss this with the [maternal aunt], who is with the children most of the time, and they shared that Ella seems to have "nightmares" that affect her sleep at the foster home. During the final supervised portion of the visits, Case Planner observes the children for any potential bruising, marks, injuries, or potential distress. There have been no concerns at this time. On 5/5/23 the [maternal grandmother] called the CP regarding a visit that took place on 5/4/23. The [maternal grandmother] stated that the kids had smelled of marijuana when they returned home the day prior. CP had held both children the day prior while assisting the family into the agency building when they returned from their unsupervised visit and had not smelled any marijuana on the children or parents. The CP and family are in a small visit room during supervised portions and CP has never smelled marijuana at any visits.(HSVS report dated May 30, 2023, at 2-3.) The Court also received a report from Ms. B.'s therapist stating that she was fully engaged, and the therapist had a copy of the petition.
"CP" refers to case planner, the front-line employee for a foster care agency charged with managing most aspects of a case, including writing court reports.
Based on this information, the parties discussed expanding visits to include overnights. ACS agreed to begin overnights, one day per week, with pickup and drop-off to take place at the agency. However, the AFC opposed commencing overnights until the agency referred the family for dyadic therapy. The agency promised to make a referral for this service, and the parties planned to submit a stipulation to the Court to be so-ordered when they had a full agreement to commence overnight visits. The rest of the conference was spent discussing the upcoming dispositional hearing.
"Dyadic therapy" is a generic term referring to any clinical intervention involving parents and children simultaneously. See National Center for Children in Poverty, "Dyadic Treatment," available at https://www.nccp.org/dyadic-treatment/.
On June 12, 2023, just two days before the dispositional hearing, the parties did submit a stipulation agreeing to the start of overnight visits. The agreement, which the Court so-ordered the next day, provided that the parents would pick up the children at the agency weekly on Tuesday, have them overnight at their home, and return them to the agency on Wednesday.
The Dispositional Hearing
The parties gathered for the dispositional hearing on June 15, 2023. In advance, all parties conveyed that they would submit exhibits but not call any witnesses. As noted above, by agreement the Court made its determination based on the "imminent risk" standard set forth in FCA § 1028.
In reaching its determination, the Court in this case had before it the finding of parental wrongdoing, and the following exhibits were entered into evidence:
ACS
Petitioner's 1 - Oral Report Transmittal dated September 10, 2022
Petitioner's 2 - Marked ACS Case Notes (Event Date September 12, 2022; Entry Dates October 4 and 7, 2022)
Petitioner's 3 - Letter from Ms. B.'s therapist dated June 14, 2023
Petitioner's 4 - Psychiatric evaluation of Ms. B. dated October 15, 2022
Petitioner's 5 - HSVS Court Report dated June 15, 2023
Mr. V.
RF Ex A - Brooklyn Community Services, certificate of completion of "anger management program, based on anger management for substance abuse and mental health clients curriculum," dated November 10, 2022
RF Ex B - Brooklyn Community Services, certificate of completion of "domestic violence workshop, based on the Duluth curriculum," dated November 10, 2022.
RF Ex C- Brooklyn Community Services, certificate of completion of "parenting program, based on the 24/7 Dad Curriculum," dated November 10, 2022
RF Ex D- HSVS Court report dated May 30, 2023
RF Ex E - HSVS Court report dated April 24, 2023
Ms. B.
RM Ex F- Harlem Child Development Center, certificate of completion of "Circle of Security Parenting Program," dated January 27, 2023
RM Ex G - Jewish Board/Harlem Child Development Center, letter dated January 16, 2023
The AFC did not present any exhibits, and all parties waived any cross-examination of the makers of the various reports in evidence.
In Exhibit 5, the agency noted that it had made referrals for Early Intervention and dyadic therapy. The agency also noted that the children were well, and that there had been no issues reported in the parents' day-long sandwich visits. The agency reported that the maternal grandmother had asked the case planner to conduct full-body checks of the children for injuries upon their return to the agency after each unsupervised visit, but that both the case planner and the children's pediatrician determined this to be unwarranted.
Based on the record, ACS argued that at disposition, the Court should place the children with the commissioner of ACS pursuant to FCA § 1055. Consistent with the stipulation it had signed on June 12, ACS supported the parents having unsupervised overnight visits with the children.
For their part, the parents asked the Court to release the children to the parents' custody pursuant to FCA § 1057, or, in the alternative, to place them in ACS custody but order an immediate trial discharge of the children to their physical care.
Regarding the issue of placement, release, or trial discharge, the AFC stated as follows:
So, this is hard. I know the standard is imminent risk and under the standard of imminent risk, there have no - been no new concerns. However, I was not aware (inaudible) did not know about some of the history of this case.
I, I don't want this return of the children to fail. I did ask for dyadic therapy, I believe this winter before this case was transferred to HeartShare when it was still Lutheran. Since my clients are babies and yes, there is a contentious relationship with the foster parents and the parents, it is very difficult for me, because I hear very opposing information about how the kids are doing and what is happening on visits. So, I am apprehensive about returning the children, based on the information that I have without dyadic therapy being in place. On that note, I understand the legal standard presented today and if Your Honor does return the children, I would ask that it be a trial discharge, so continuing support and services can be provided. And I, I know the referral for dyadic therapy was only made in May and I wish it had been made a lot earlier, because from the very start of this case that would have helped me have a better sense of my - how my clients are doing with their parents and concerns that have been raised by the [sic] parents. So, it's a very - I have - I am in a very difficult position here, Your Honor and I apologize for that.(6/15/23 Tr. at 17.)
The same attorney was the AFC from the outset of the case when it was filed in August 2022.
The other contested issue at the dispositional hearing related to the parents' service plan and whether the Court should order them to submit to mental health evaluations. Counsel for ACS stated that its exhibit 4, an evaluation Ms. B. had completed on October 15, 2022, was insufficient, and that Mr. V. had never done an evaluation at all, and that ACS was asking the Court to refer the parents to the Health + Hospitals Corporation's Family Court Mental Health Services clinic for such evaluations. (Id. at 7.) Mr. V.'s counsel noted that in multiple conversations about this case, including on the record before the Court, clarification was sought and the agency repeatedly confirmed that Mr. V. did not need to engage in any further services beyond the array of programs he had already completed. (Id. at 6.)
Upon inquiry by the Court during the dispositional hearing, the HSVS case planner once again confirmed the service plan:
THE COURT: "[I]n February you took over the case. Was it your understanding that a mental health - comprehensive mental health evaluation was part of the service plan?
[THE CASE PLANNER]: For Mr. V., it was not. For Ms. B., it was. Lutheran told me they had completed one. I only got access to it yesterday.(Id. at 8.)
In consideration of the record before it and the standard of imminent risk, the Court entered the following dispositional order:
1) Pursuant to Family Court Act section 1055, the children are placed with the commissioner of ACS until completion of the next permanency hearing.
a. Over agency objection, the agency is directed to commence a trial discharge of the children to their parents no later than June 16, 2023. The trial discharge shall not be failed absent Court order. In the event of an emergency, the agency may remove the children but must file an order to show cause the next court day.
2) During the period of placement/trial discharge, the parents are directed to:
a. Cooperate with agency supervision, including announced and unannounced home visits; signing releases to permit the agency to monitor their engagement in services and the children's well-being; and keeping the agency apprised of any changes in their contact information.
b. Engage in dyadic therapy as may be referred by the foster care agency or a preventive services agency.
c. Provide consent for the children to receive necessary services.
d. Cooperate with the reasonable requests of the attorney for the children.
3) During the period of placement/trial discharge, Ms. B. is directed to remain engaged in clinically recommended mental health services unless/until her provider successfully discharges her.(Dispositional Order 6/15/2023 at 2.) The Court allocuted the parents on each provision to confirm their understanding and consent. (6/15/23 Tr. at 23-26.) ACS did not appeal the Court's dispositional order or seek an emergency stay of the Court's decision to send the children home.
The September 14, 2023, Permanency Hearing
At the permanency hearing, the Court considered all of the reports that had been submitted since February, including an updated permanency hearing report, which noted the children appeared well during home visits conducted by HSVS staff. The agency's case planner conducted two home visits per month, and a nurse visited one additional time per month. The agency also reported that Mr. V. had completed all of his services, and that it had been unable to reach Ms. B.'s therapist (despite Ms. B. having signed a release) to confirm her continued engagement. The agency reported on its efforts to refer the family for dyadic therapy, noting that no response had been received from the provider since the agency had sent the referral in May.
According to a report from HSVS dated September 25, 2023, after Ella's death, the agency conducted its final home visit on September 13, 2023, the day before the permanency hearing. The children were free of marks and bruises at that time.
The agency also indicated that the parents had declined to consent to Early Intervention services for the children. In her testimony at the hearing, HSVS Director of Foster Care Rosalyn Chernofsky explained that an Early Intervention assessment was recommended by the children's pediatrician based on their medical history. Should the assessment reveal any developmental delays, the children could be provided services to enable them to catch up before beginning school. (9/14/23 Tr. at 11-12.)
The permanency hearing report also noted that the parents had missed several medical appointments for the children since the trial discharge had commenced. These included neurology, ENT, audiology, and gastroenterology appointments for Ella. In her testimony, Ms. Chernofsky stated that the agency raised the issue of missed appointments with the parents at a meeting held on August 8. She explained, "Mr. V. did ask if these medical appointments were mandated. They are not mandated, but they are required in order for continuity of care and also in order to transfer medical care to a facility that is closer and more convenient to them." (Id. at 9.)
The parents and the AFC did not have any exhibits at the permanency hearing, and all parties were given the opportunity to cross-examine Ms. Chernofsky. The parents did not testify about any of the issues raised on the record.
In her summation, counsel for ACS argued as follows:
Your Honor, at this time, we ask that the placement of the children continue with ACS until the next permanency hearing. We are asking that the goal of return to parent is approved and that [the Court find] that reasonable efforts have been made towards that goal. The agency is asking that the trial discharge continue, but we are asking that the parents comply with the medical appointments that are scheduled and comply with the early intervention evaluation.
(Id. at 14; emphasis added.) The AFC joined in these applications. (Id.) The parents' attorneys indicated that their clients consented to the ACS applications as well, but noted that according to the parents, they had declined Early Intervention assessments as they found in-home services to be too disruptive to the children and their attachment process.
The Court entered the findings and orders on consent. After criticizing the parents for failing to testify themselves about their reasons for not cooperating with Early Intervention assessments, and for their failure to adhere to their prior agreement and the Court's order that they consent to all necessary services, of which Early Intervention was one, the Court re-allocuted Mr. V. and Ms. B. as to their obligations under the dispositional order, which included providing their consent for all necessary services for the children. (Id. at 17.)
After the parties and the Court selected the next appearance dates, counsel for ACS asked, "[D]oes the agency have authority to do a final discharge?" The application was granted without objection. (Id. at 33.)
In issuing a permanency hearing order, the Court may grant ACS authority to "finally discharge" a child in foster care to the respondent(s), without the need for further permanency hearings or court orders. FCA § 1089(d)(2)(viii)(C).
ELLA'S DEATH AND THE INSTANT MOTION
By order to show cause (# 2) dated September 18, 2023, ACS moved for an order failing the trial discharge of the children, stating that on September 15, the day after the parties were in court for the permanency hearing, Ella was brought to the hospital for cardiac arrest and difficulties breathing. Upon examination, she was found to have skull fractures and brain injuries, which were suspicious for non-accidental trauma according to medical personnel who examined her. She was reported to be on a ventilator and undergoing tests to determine if she was brain dead. According to ACS, Ms. B. claimed that Ella had choked on milk, and Mr. V. blamed vigorous chest compressions by EMT's for her injuries. Liam was unharmed and had been returned, on an emergency basis, to foster care placement with his maternal grandmother.
The AFC supported the trial discharge being failed, and the parents did not contest that relief, which was granted. As to visitation, ACS and the AFC asked to suspend all visits, but the parents asked to continue contact with the children. Regarding Ella, the Court allowed the parents to visit her bedside in the hospital, if supervised by ACS, but suspended their contact with Liam. However, the Court directed ACS to file a motion by October 2, 2023, should it seek a continued suspension past that date, to give the parties an opportunity to brief the issue and for the Court to issue a comprehensive ruling.
On September 20, 2023, Ella was pronounced dead.
On September 28, 2023, ACS filed this motion, along with a new petition regarding Liam alleging derivative severe abuse. The petition recited the findings of the Court from the 2022 docket, as memorialized in the determination of neglect pursuant to the parties' agreement on March 17, 2023. For the first time, ACS made factual allegations in a child protective petition concerning Ella's tongue laceration from September 2022, and attached a report from the Maimonides Hospital Child Advocacy-Like Model ("C.A.L.M.") Team which was evidently prepared one year prior but not previously submitted to the Court either as a report or included as an exhibit for any hearing. This report stated that "a sharp object" necessarily caused the injury to Ella's tongue earlier that month and assessed that Mr. V. presented an imminent danger to his children. (Petitioner's Exhibit J at 10). And, in addition to the preliminary facts stated in the September 18 order to show cause, the new petition alleged:
The C.A.L.M report attached to this motion contains information from four different time periods: A report concerning the team's encounter with the children August 11-16, 2022; a report dated September 21, 2022, concerning Ella's tongue injury that month; an "Interim History" note dated March 1, 2023; and a report concerning Ella's injuries in September 2023. The first time any of these reports were provided to the Court was on September 28, 2023, as Exhibit J to petitioner's motion to suspend the respondents' visits with Liam.
The C.A.L.M. team's March 1, 2023, "Interim History" note concluded that both Ella and Liam would be at "great risk for child maltreatment" in the care of their parents. (Ex. J at 11.) ACS consented to unsupervised visits on March 17, 2023. See supra at 9.
After being transferred [from Kings County Hospital] to Maimonides Hospital and undergone a physical exam and several other exams, Ella was found to have the following: bruising on her forehead, firm hematoma over the left side of her skull with overlying bruising, swelling over her left eyelid, 2 linear lacerations on the left scalp, 2 patterned bruises consistent with bite marks on her left lateral/posterior thigh, bilateral frontal lobe subdural hematomas along with more subdural blood tracking along the falx and tentorium, swollen spinal cord and petechial hemorrhage around the spine. Ella was also found to have a midline fracture of her jaw, old, healed femur fractures and bilateral fresh pre-retinal, intraretinal, subretinal retinal hemorrhages. According to Dr Ingrid Walker-Descartes, these injuries are consistent with child physical abuse and abusive head trauma... According to Dr. Walker Descartes, the only explanation provided by the parents for this injury was that Ella was choking on milk. According to Dr. Walker-Descartes, this explanation was not consistent with the nature of the injury.(9/28/23 Severe Abuse Petition, docket NA-19991/23, dated Sept. 28, 2023, at Addendum I, ¶ 1(a), (b).)
No criminal charges have been filed concerning Ella's death.
In its papers in support of continued suspension of visits, ACS asserts that even supervised visits could not keep Liam safe from harm perpetrated by the parents, in light of the multiple alleged incidents of serious harm done to Ella while in their exclusive care, despite their having engaged in services. ACS and the AFC both point to significant post-traumatic stress reactions Liam has displayed since being returned to care, including head banging and placing his hands over his ears and shaking his head side to side. The AFC argues that healing from the exposure to the trauma of his sister's death will require significant time and that re-exposure to the source of the trauma can extend its impact.
In response, counsel for Mr. V. recites details from the many positive visits that he had with the children prior to the trial discharge, noting the lack of violence or uncontrolled anger on his part. Counsel also observes that ACS favored overnight visits at the time of disposition, a position based on the lack of any reported safety concerns as of June 2023. Finally, counsel argues that the only factual finding against Mr. V. is for neglect, and that under the law, even as applied to this case, ACS remains legally obligated to try to reunify Liam with his parents, despite the serious nature of the allegations, and that separation from his parents without visitation is itself a form of trauma to the child.
Ms. B.'s attorney makes similar arguments, adding that the sudden separation of Liam from his parents is an example of "ambiguous loss" which can generate feelings of helplessness, depression, and anxiety. She further argues that contact with Liam should continue, such as in a therapeutic setting, and that visits should be suspended only if it appears from the sessions that Liam is being harmed by being with his mother even in those controlled settings.
In reply papers, ACS argues that Ms. B.'s plea for therapeutically-supervised contact with Liam rings hollow considering her continued refusal to consent to therapeutic assessments or services for the child.
On the return date of this motion, November 3, 2023, the parties gathered before the Court and waived oral argument on the visitation issue. The Court also conducted a pre-trial conference on the record, discussing matters related to discovery, expert witnesses, and overall trial planning.
During the pre-trial conference, the Court was presented with and reviewed a report from ACS dated November 2, 2023, which stated that Liam has been observed to be happy in his maternal grandmother's home. ACS also noted its recommendations that Liam engage in trauma-focused therapy and an Early Intervention assessment. The Court also reviewed a report from HSVS, dated November 1, 2023, in which the foster care agency observed that while Liam is doing well overall in the foster home, he "has been observed displaying self-injurious and frustrated behaviors since his return to care following his sister's death." The agency noted that his grandmother has been advocating for him to receive appropriate therapeutic services, and that she "continues to ensure the safety and well-being of the child. [She] is up to date with all foster parent training and her home is in good standing with the agency." Nevertheless, HSVS reported that both parents recently requested that Liam be removed from his grandmother's home and be transferred to a maternal cousin's home in Florida. The parents claim that Liam is "unhappy" though they could not state how they knew this.
Additionally, the parties discussed the issue of parental consent for the Early Intervention assessment and play therapy. The agency argued that the child's pediatrician had expressed concerns about a speech delay and had opined that Liam should have an Early Intervention assessment. In light of his sister's death and Liam's return to foster care, the agency felt strongly that he also needed therapeutic services. Noting the parents' refusal as of that point to agree to any of these programs, ACS asked for the Court to authorize it or HSVS to consent in the parents' stead, a position supported by the AFC. Ms. B.'s counsel clarified that her client was not opposed to play therapy, just that she wanted to be involved in it herself. (11/3/23 Tr. at 23.) Mr. V. spoke for himself on the record, saying he wants someone of his choosing to be involved in the therapy, such as his mother, even if he himself is not present. (Id. at 26.) Because ACS had not provided prior notice to the parties that it would be seeking this relief, and because the application affected the parents' intact legal rights, the Court allowed the parents the opportunity to respond in writing and set forth a briefing schedule.
The matter was subsequently briefed, and by separate Decision and Order dated December 4, 2023, the Court granted ACS's applications, enabling it to move forward with an Early Intervention assessment and play therapy for Liam, over the parents' objection.
Regarding Liam's placement, the Court declined the parents' request that it direct ACS to explore the cousin in Florida and, to the contrary, entered an order prohibiting ACS from moving the child from the maternal grandmother's foster home.
The Court reserved decision on the visitation motion, and this Decision and Order follows.
ANALYSIS
The law of New York provides that when the state initiates a child protective case and obtains a court order to remove children from their parents' care, the state is nevertheless obligated to work towards reunifying the family, absent specific findings made by the court following litigation. This is true even in cases of child abuse, whether physical or sexual. "[W]hen a child has been removed from the home based on alleged abuse or neglect the social services official responsible for the child must attempt to reunite the child with the birth parent; this includes efforts at rehabilitation so as to render the parent capable for caring for the child." See In re Marino S., 100 N.Y.2d 361, 368-9 (2003). This is based on the long-standing public policy of New York to keep families together and to "require foster care agencies to exercise diligent efforts to reunite abused and neglected children with their birth parents, once rehabilitated." Id. at 372.
[I]t is generally desirable for the child to remain with or be returned to the birth parent because the child's need for a normal family life will usually best be met in the home of its birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered. [T]he state's first obligation is to help the family with services to prevent break-up or to reunite it if the child has already left home.
Social Services Law § 384-b(1)(a)(ii)-(iii).
In New York, absent a termination of parental rights, there is only one exception to the requirement that agencies make efforts to reunify parents and their children in foster care. Family Court Act § 1039-b provides that "in conjunction with, or at any time subsequent to the filing of a[n abuse or neglect] petition, the [presentment agency] may file a motion upon notice requesting a finding that reasonable efforts to return the child to his or her home are no longer required." Matter of Dashawn W., 21 N.Y.3d 36, 50 (2013). Such an application must be made in writing. See In re Lindsey BB., 72 A.D.3d 1162, 1164 (3d Dept. 2010). Absent an evidentiary hearing that results in a finding of severe abuse or a showing of "aggravated circumstances," the child protective agency is not relieved of its duty to make reasonable efforts to reunify a family. See In re Leon, 83 A.D.3d 1069, 1071 (2d Dept. 2011). ACS did not plead this case as "severe abuse" when it filed the August 16, 2022, petition. The petition was written as an abuse, but not a severe abuse, case. Nor has ACS filed a § 1039-b motion to accompany the present severe abuse petition.
An "abused child" is one whose parent "inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ," or commits a delineated sex offense. Family Court Act § 1012(e). In contrast, "severe abuse" requires three findings by the Court: 1) that the child has been abused, as defined in § 1012(e); 2) that the child's abuse is "a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury" as defined in the Penal Law, or the parent committed a felony sex act on the child, or the parent has been convicted of murder or manslaughter of the child's sibling; and 3) that "the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate [the parent], when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future." Social Services Law § 384-b(8)(a).
With respect to the instant application to suspend the parent's visitation with Liam, there is minimal case law governing parent-child visitation during the pendency of a child protective case. As noted above, absent a determination by the Court pursuant to Family Court Act § 1039-b that relieves the agency of the obligation to assist in reunification, ACS and its foster care agencies must always make reasonable efforts to do so. Visitation is often the central service offered to maintain and strengthen the parent-child relationship. From the outset of the case in August 2022, visitation was offered while the parents engaged in services. Visitation was slowly expanded as the parent-child interaction improved and as the parents completed those services which ACS and the foster care agency determined would rehabilitate them. At times, as on January 19 and February 15, 2023, the Court declined to order an expansion of visits, concurring with ACS that unsupervised contact was not appropriate. By late April 2023, the agency was exercising its discretion to permit the parents unsupervised visits from 10am to 5pm, twice per week. When the reports of these visits were positive, ACS and the AFC consented to overnights, which the Court ordered.
Several months later, circumstances have quite obviously changed in a tragic way. Suspension of a respondent parent's visitation with a child is a "drastic remedy." Matter of Shaun X., 300 A.D.2d 772 (3d Dep't. 2002). To make the case for suspension, petitioner must demonstrate 1) compelling reasons with 2) substantial evidence that indicates 3) harm to the child from continued visits, even visits that are strictly supervised at the agency. Matter of Telsa Z., 84 A.D.3d at 1603. All parents have a right to visitation absent a finding "that the child's life or health would be endangered." FCA § 1030(c). The harm element may be established by reference to emotional distress. Walker v. Sterkowicz-Walker, 203 A.D.3d 1167 (2d. Dep't. 2022).
The standard for restricting visitation after the Court has found parental neglect or abuse and placed the child in foster care should be somewhat more relaxed than pre-fact-finding - even if the permanency goal remains return-to-parent and even in the absence of a § 1039-b finding. Respondents' reliance in this case on § 1030, which exclusively governs pre-fact-finding visitation, is misplaced, because there has already been a determination of neglect and a placement of the surviving child in foster care as a result of that neglect.
By its own terms, § 1030 only applies to matters in which the child is in the" temporary custody" of ACS. FCA § 1030(a) (emphasis added). Not only is the meaning of this text plain, its placement in the Family Court Act under Part 2 of Article 10 ("Temporary Removal and Preliminary Orders") makes clear which aspects of a child protective case are covered by its terms. In contrast, once a child is placed with ACS at disposition, the Court has far greater latitude in determining whether to impose the drastic remedy of visitation suspension. Pursuant to FCA § 1055 (which is located in Part 5 of Article 10, covering post-fact-finding orders), the Court is obligated merely to set forth in the dispositional order "a description of the visitation plan," without any specific guidance other than to determine the overall best interests of the child. FCA § 1055(b)(i)(A). Similar language appears in the permanency hearing provisions, which govern this case in its current posture. FCA § 1089(d)(vii)(A). This Court holds, then, that while ACS must still establish harm to the child in order to justify suspension of visits post-disposition, the manner and extent of the evidence of harm need not be as exacting as pre-fact-finding.
Here, it is uncontroverted that Liam's sister Ella is dead at the age of 13 months, after suffering unimaginable injuries to her brain, spinal cord, skull, face, and leg - including a bite mark. The agency asserts that Liam was present when these injuries occurred. See Petitioner's Motion # 3, Exhibit M (HSVS report dated Oct. 25, 2023, at 5). Each parent had the opportunity to contest this fact; neither did so. Not only is it a fair inference that Liam, who had just turned two, was home at the time, it is also reasonable to conclude that he witnessed the entirety of what happened to Ella.
That there were prior positive visits is of little relevance now that Liam has witnessed his sister's death. Those positive visits, which led to a steady expansion of parenting time and ultimately a trial discharge, came in the context of parents who were cooperative with the agency and who had made progress in their rehabilitation. Mr. V. commenced all services the agency asked him to after Ella's tongue injury, and he completed them in November 2022. Ms. B. completed domestic violence counseling and was consistently engaged in mental health services with a provider who had a copy of the petition against her and was using it in therapy sessions. The parents had taken responsibility for their actions by admitting to neglect of the children.
Now, however, everything has changed, and Ms. B.'s reliance on the theory of "ambiguous loss" is unconvincing. While it is true there is no way to know the source of Liam's trauma responses, reasonable inferences can be made based on the history of the case detailed above. His recent behaviors, including banging his head and putting his hands to his ears while shaking his head "no," are very likely signs of an acute post-traumatic stress reaction. The Court finds that this extreme reaction is more likely to be based on witnessing his sister die than simply from being separated from his parents, as respondents' counsel argues. While the child's age prevents us from having absolute certainty as to the cause of his trauma - and allowing for the possibility that it has multiple sources - the reality is that his parents have been given the opportunity to demonstrate care and concern for him in the period following his replacement into care and have failed to do so.
For their part, the parents are no longer cooperative or acting with their children's best interests at heart. Mr. V.'s and Ms. B.'s refusal to consent to an Early Intervention assessment, their insistence that they or persons of their choosing be present for any play therapy he might engage in, and their demand that he be removed from his maternal grandmother's home are all contrary to the child's best interests, especially given all that Liam has recently endured. The lack of empathy demonstrated by the parents in the last several weeks suggests the likelihood of emotional harm that would befall Liam to have any contact with them at present.
Liam has a strong attachment to his maternal grandmother, who served as his foster parent for at least nine months prior to his return to his parents. In his short, but trauma-filled, life, nine months is a significant period of time. The agency observes Liam to be happy with his grandmother and states that he has easily adjusted well to living with her again. Putting his hands to his head and shaking his head "no" in his current context does not signify a lack of attachment to a substitute caretaker or an adverse reaction to a new environment of strangers, because his grandmother's home is a known, loving environment. When he first moved there in September 2022, the agency reported no struggles in his adjustment.
Moreover, Ms. B.'s own application to have Liam moved to another home undercuts her assertion that the child is currently experiencing ambiguous loss, or at the very least represents a profound lack of empathy if that is in fact what he is experiencing. In the request to send Liam to live with her cousin in Florida, Ms. B. made no representation that the child has a positive attachment with the cousin or even knows who she is. Moving the child there would only exacerbate the child's feelings of loss, as he would then be taken away from a positive attachment figure and placed with a stranger. As both parents advocated for Liam to be moved from the maternal grandmother's home, the Court finds that they both lack understanding for the child's emotional state.
Liam is trying to adjust to life without his sister; that project would be threatened by the high risk of emotional harm to resume contact with his parents. Liam's presence in the home when Ella died, his trauma responses, and the fact that he has been returned to care on an abuse case following a finding of neglect, taken together, necessitate further therapeutic intervention prior to the resumption of visitation.
The parent-child relationship can recover from a temporary suspension of contact in the event the legal case ends in the parents' favor and/or if the parents engage in rehabilitative and restorative services along the way. However, the Court finds compelling evidence that at this time, Liam's contact with his parents will cause him harm and that it is in his best interests for the Court to suspend visitation.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Motion # 3 is GRANTED and the parents' visits with Liam are hereby SUSPENDED. There shall be no contact of any kind, and the order of protection (full-stay-away) entered November 3, 2023, shall be continued and extended until further order of the Court.
The Court will reconsider this order regarding each parent individually upon his or her filing of a motion demonstrating the following changes in circumstances. The parent must show:
1) The parent has submitted to a comprehensive forensic mental health evaluation conducted by the Health + Hospital Corporation's Family Court Mental Health Services clinic ("MHS"). If the parent wishes to have such an evaluation, which can only be done pursuant to Court referral, counsel should contact the court attorney and arrangements will be made.
2) The parent must begin engaging in all services recommended by the MHS evaluation and sign a release to allow the agency and the provider(s) to communicate. The agency is hereby authorized and directed to give the provider a) the MHS evaluation; b) the C.A.L.M. report (Ex. J to this motion); and this Decision and Order. The provider must report, either directly to the Court or indirectly though the agency, regarding the parent's development of insight and empathy as to Liam's condition.
3) The parent must consent to any and all clinically reasonable services the agency may determine Liam needs and/or which the Court orders the agency to arrange.