Opinion
Decided December 17, 2007.
Sara Hiltzik, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Brooklyn NY.
Melissa Bonaldes, Esq., for respondent mother, Brooklyn NY,
Robert Silverberg, Esq., for non-respondent father-petitioner father, Brooklyn NY.
Sara Reiseberg, Esq., Law Guardian, Juvenile Rights Project, Legal Aid Society, Brooklyn NY.
The issue currently before the Court in this mid-fact-finding Family Court Act article 10 and pre-trial article 6 proceeding is where the parents' five-year-old son should reside pending the completion of the hearings. In order to decide this question, the Court must resolve certain conflicts between article 10 and article 6 of the Family Court Act as they apply to the specific facts herein.
The respondent mother (hereinafter, "the mother"), and the Law Guardian assert that absent evidence of "imminent risk," the child, Willis B III (hereinafter, "Willis"), should be immediately returned to the mother's home where he and his two half-sisters resided until they were removed by ACS and NYPD, approximately one year ago. They emphasize that the child was only paroled to the father in the context of the child protective proceeding and that the parole did not confer any presumed rights to custody upon him. They contend that the issue of custody is not currently before the Court and that the question of the child's "best interests" will not be relevant until the dispositional hearing on the neglect petition and/or the hearing on the custody petition. In the meantime, they assert that pursuant to article 10, the child should be returned to the mother.
The non-respondent father (hereinafter, "the father") and the Administration for Children's Services (hereinafter "ACS") disagree. They assert that Family Court Act § 1028 is not applicable where, as here, a child has been removed from one parent and paroled to the other. Consequently, they believe that the relevant inquiry in deciding whether to remove the child from the father's home and return him to the mother, is not "imminent risk" but "best interests."
Family Court Act § 1028 (a) provides for a parent's application to seek the return of a child temporarily removed as follows: Upon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the law guardian for an order returning the child, the court shall hold a hearing to determine whether the child should be returned (i) unless there has been a hearing pursuant to section ten hundred twenty-seven of this article on the removal of the child at which the parent or other person legally responsible was present and had the opportunity to be represented by counsel, or (ii) upon good cause shown. Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned. Upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. If a parent or other person legally responsible for the care of a child waives his or her right to a hearing under this section, the court shall advise such person at that time that, notwithstanding such waiver, an application under this section may be made at any time during the pendency of the proceedings.
The father emphasizes that the custodial arrangement in place prior to the filing of the child protective proceeding, was the result of an informal agreement between the parties and that there has never been a court order or stipulation establishing custody. Accordingly, he asserts that the prior arrangement is entitled to less weight than a custody disposition ordered after a plenary trial.
In addition, the father notes that the child was paroled to him under the Interstate Compact for the Placement of Children (hereinafter, "the ICPC"), and that he has now resided with him, his fiancée and her child in West Virginia for nine months. He asserts that this de facto custodial arrangement should not be modified without the benefit of a "best interests" hearing since the Court is faced with a multitude of conflicting assertions concerning both parties, including allegations of child neglect and domestic violence. In addition, the father asserts that the only way to protect the child from the possibility of being shuttled back and forth between the parents is to maintain the status quo until all of the hearings have been completed. Finally, he asserts that by failing to proceed at the hearings previously scheduled at her request, the mother has tacitly consented to the current arrangement.
After consideration of the applicable case and statutory law as well as the unique circumstances presented herein, the Court grants the request of the mother and the Law Guardian for a hearing determine whether to modify the prior order paroling the child to the father. That hearing shall be conducted pursuant to FCA § 1061 and the issue will be whether movants can establish "good cause" and that the child's best interests support an immediate return to the respondent mother's care.
Family Court Act § 1061 provides that "For good cause shown and after due notice, the court on its own motion, on motion of the corporation counsel, county attorney or district attorney or on motion of the petitioner, or on motion of the child or on his behalf, or on motion of the parent or other person responsible for the child's care may stay execution, of arrest, set aside, modify or vacate any order issued in the course of a proceeding under this article."
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 28, 2006, ACS removed the three subject children from the care of the mother without a court order pursuant to Family Court Act § 1024. On November 29, 2006, ACS filed neglect petitions against her. The petitions allege that the mother failed to provide adequate care and supervision for the children by refusing to obtain medical treatment for the child Christine Gonzales after she sustained a second-degree burn and by subsequently providing inconsistent accounts of how the injury occurred. In addition, the petitions allege that the mother failed to engage in family therapy with Christine despite the child's special needs and recommendations by the child's therapist that she do so; failing to prevent the child Willis from running out of the apartment into the hallway at 1:00 AM; failing to prevent Willis from grabbing a pot of boiling water off of the stove; and appearing unfocused, incoherent, detached and unresponsive when confronted by the caseworker and police officers. Finally, the petitions allege that the mother threatened to kill herself when the caseworker and the police officers told her that they intended to remove the children.
Family Court Act § 1024 allows for an emergency removal of children from the parental home when there is reasonable cause to believe that the children's continued residence therein would present an imminent danger to the their lives or health. Upon the emergency removal, ACS is required to file a petition forthwith (FCA § 1026 [c]).
On December 11, 2006, the mother appeared in court, issue was joined and counsel was assigned. Thereafter, the child Christine G was placed in a therapeutic foster boarding home where she has remained to date. The child Samantha A was initially placed with a maternal relative until problems arose between the relative and the mother and, on June 5, 2007, the mother requested that Samantha be moved to a different home. The child was thereafter placed in a non-kinship foster home. The child Willis was initially placed with a paternal aunt until she notified ACS that she was no longer able to care for him since she was planning to relocate out of state.
On January 22, 2007, Willis B II, the non-respondent father (hereinafter, "the father"), filed a petition seeking custody of Willis, the parties' five-year-old son and only child in common. On February 22, 2007, the Court ordered a priority placement pursuant to the ICPC ( see Regulation No. 7, Association of Administrators of the Interstate Compact on the Placement of Children). On April 19, 2007, ACS notified the Court and the parties that the ICPC had been approved and Willis went to his father's home for a visit. On May 20, 2007, the paternal aunt appeared in court asserting that she wished to relocate immediately and that a new home would have to be found for her nephew. Accordingly, with the very strong support of the Law Guardian, Willis was paroled to the father where he has remained to date.
On June 6, 2007, the mother requested a FCA § 1028 hearing seeking the immediate return of Willis. Over the objections of the Law Guardian, ACS and the father, that request was granted to the extent that the matter was set down for a hearing on June 13, 2007 at 4:00 PM. On June 13, 2007 at 4:00 PM, although ACS, the father's counsel and the Law Guardian were all present, neither the mother nor her attorney appeared. When counsel failed to appear by 5:30 PM, the matter was adjourned to July 11, 2007 for fact-finding and permanency hearings.
The Law Guardian, ACS and non-respondent-father asserted that the mother was not entitled to a FCA § 1028 hearing since the child had been paroled to a parent and was no longer in foster care. The respondent mother disagreed, asserting that Willis had originally been removed from her care pursuant to Family Court Act § 1024 and that she retained the right to request a Family Court Act § 1028 hearing since the statute explicitly provides that such an application "may be made at any time during the pendency of the proceedings."
On July 11, 2007, the Court commenced the fact-finding and permanency hearings. The matter was then adjourned to July 18, 2007, for a scheduling conference. On July 18, 2007, the scheduling conference took place and new dates were set for the continued permanency hearing and continued fact-finding on the underlying neglect. On August 28, 2007, the Court completed the permanency hearing. On that date, the mother and the Law Guardian requested a hearing to determine whether Samantha and Willis should be immediately returned to the mother's care. That request was granted to the extent that the matter was set down for a FCA § 1028 hearing on August 30th at 3:00 PM. On that date, the attorneys elected not to proceed and instead chose to conference the case. At the conclusion of the conference, the request for a FCA § 1028 hearing was renewed. That request was again granted to the extent that the matter was again set down for a FCA § 1028 hearing the following day at 9:30 AM. On that date, counsel for the parties appeared, however, the mother failed to appear and at 1:00 PM the matter was adjourned to September 24, 2007, for a conference. On August 31, 2007, the child Samantha was paroled to the mother on the consent of the attorneys for the parties.
The Court had planned to begin a 10-day vacation on August 31, 2007. Nevertheless, in recognition of the mother's right to a hearing within three court days, the Court decided to modify its plans and work on August 31, 2007, to conduct the hearing.
On October 22, 2007, the parties and the attorneys appeared and the mother and the Law Guardian requested the immediate return of Willis to the mother's care. The mother asserted that a hearing should be conducted pursuant to FCA § 1028. The mother and the Law Guardian asserted that absent evidence of "imminent risk," Willis should be immediately returned to the mother. Both contended that the father had no right to custody prior to a hearing and proof of a substantial change in circumstances and that the child's best interests supported that result. They stated that the father's position was identical to any other parole resource under article 10.
The father and ACS disagreed, again asserting that the mother was not entitled to a FCA § 1028 hearing since the child had been paroled to the father and was not "in foster care." In addition, the father asserted that Willis should not be returned to his mother's care without a temporary custody hearing.
The matter was thereafter adjourned to October 26, 2007, from 9:30 AM until 11:00 AM, for a hearing. On the adjourned date, the Court was unable to begin the hearing as scheduled because the mother did not arrive in court until almost 11:00 AM. Accordingly, the Court was only able to devote a short time to the hearing, which was then adjourned to November 16, 2007. On that date, the Court continued the hearing and then adjourned to November 27, 2007 at 4:00 PM. Once again on the adjourned date, the Court was unable to proceed at the scheduled time because the mother failed to arrive in Court until almost 5:00 PM. In addition, when she did arrive, she was accompanied by Willis, who had been visiting during the Thanksgiving recess. Since the mother made no child-care arrangements and since the court's nursery does not accept children after 4:30 PM, the case was further delayed while court staff attempted to make temporary child care arrangements. The Court thereafter conducted the hearing until 6:45 PM at which time it was adjourned to December 20, 2007 at 5:00 PM for a continued hearing.
Legal Analysis
This case continues to raise questions about the complex interplay between article 6 and article 10 of the Family Court Act. As other courts have noted, this interplay raises many conflicting policy and practical considerations ( see e.g., Matter of Felicity II , 27 AD3d 790 [3rd Dept 2006] [Family Court erred by entertaining article 6 petition filed by maternal aunt while article 10 order of placement was in existence; to entertain a non-parent's custody petition under such circumstances disrupts the parent's effort to reunite with the child]; In re Seth Z., 2007 WL 4197390 [3rd Dept 2007] [Family Court's denial of aunt and uncle's application to approve them as suitable relatives to care for the child was not an abuse of discretion in the neglect proceedings, however, in the context of the custody proceedings, the aunt and uncle had a statutory right to a hearing concerning extraordinary circumstances and best interests]; Matter of Marcy RR , 2 AD3d 1199 [3rd Dept 2003] [Family Court properly awarded joint custody to an out-of-state non-parent relative under article 6 prior to the final order of disposition in an article 10 proceeding]; In re Tristram K., 25 AD3d 222 [1st Dept 2005] [Family Court erred by awarding permanent custody to the child's aunt following a finding of neglect against the mother absent a full evidentiary hearing, findings of extraordinary circumstances and that the best interests of the child supported that result]).
Although the instant case presents certain similar conflicting considerations, the facts are readily distinguishable. First, here, the party seeking custody from an allegedly neglectful parent, is a parent, rather than a non-parent kinship resource. Accordingly, the mother's presumptive right to custody, as against the father, stands on different footing than a respondent parent in a child protective proceeding, as against a foster parent or kinship resource. Second, here, there has been no judicial determination, written stipulation or other formal agreement regarding the child's custody. Third, in the instant case, the issue is not whether to grant the father a final order of custody but simply whether to continue the parole until the completion of the neglect and custody hearings.
The issue of custody cannot be finally resolved until after the fact-finding hearing on the neglect case has been completed ( Donna KK. v Barbara I. , 32 AD3d 166 [3rd Dept 2006] [Family Court abused its discretion in hearing and deciding grandmother's custody application before resolving issue of neglect; the proper and more efficient use of judicial resources would have been to consider the custody application with the dispositional phase of the neglect proceeding]; Diaz v Santiago ,8 AD3d 562 [2nd Dept 2004] [Following a dispositional hearing, Family Court properly issued orders in the article 10 proceeding, releasing the children to the father and in the article 6 proceeding, awarding him custody]; A.B. v D.W., 16 Misc 3d 578 [Fam Ct, Monroe County 2007] [courts have consistently held that an article 6 custody hearing shall take place jointly with an article 10 dispositional hearing if a neglect finding is entered]).
Once the fact-finding hearing has been completed, the custody hearing can be conductedjointly with the dispositional hearing, if any, in order to consider the best interests of the child ( see Eschbach v Eschbach, 56 NY2d 167). The issue of custody cannot be resolved without an evidentiary hearing since such a determination cannot be made on the basis of inadequate or contested allegations ( see e.g., Coon v Coon ,29 AD3d 1106 [3rd Dept 2006] [trial court erred by granting temporary custody to mother without first conducting an evidentiary hearing]; Hizme v Hizme, 212 AD2d 580 [2nd Dept 1995] [trial court erred by making a custody order based on controverted allegations without a full hearing to resolve the issues which develop from conflicting assertions]; Robert C.R. v Victoria R., 143 AD2d 262 [2nd Dept 1988] [trial court erred by transfering custody on the basis of one parent's recriminating and unsubstantiated allegations of the other parent's unfitness]; Williams v Williams, 35 AD3d 1098 [3rd Dept 2006] [trial court improvidently awarded sole custody to one parent without a full hearing since the court did not possess sufficient information to render an informed determination consistent with the children's best interests]).
It is only under circumstances, not present here, where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interest that a hearing may not be required ( Smith v Molody-Smith, 307 AD2d 364 [2nd Dept 2003]; Assini v Assini, 11 AD3d 417 [2nd Dept 2004] [where court possesses adequate relevant information to enable it to make an informed determination, an evidentiary hearing is not necessary for a temporary custody determination]; Hom v Zullo , 6 AD3d 536 [2nd Dept 2004] [where court possesses sufficient information to render an informed determination that is consistent with the child's best interests, a hearing is not required]; Matter of Vangas v Ladas, 259 AD2d 755 [2nd Dept 1999] [while modification should generally be made only after a full evidentiary hearing, here the Family Court possessed sufficient information to render an informed determination that was consistent with the child's best interests]).
Similarly, modification of a prior custody arrangement should not be ordered without a hearing to determine the best interests of the child ( Dorsett v Dorsett, 93 AD2d 854 [2nd Dept 1983], Martin R.G. v Ofelia G.O .,24 AD3d 305 [1st Dept 2005] [temporary transfer of custody was not appropriate absent a hearing on the child's best interests]; see also Obey v Degling, 37 NY2d 768). After such a hearing, an established custody arrangement will be modified only upon a showing of a subtantial change in circumstances which requires a change to ensure the continued best interests of the child ( see Eschbach v Eschbach, 56 NY2d 167, supra).
In evaluating the question of best interests, the court must review the totality of the circumstances ( Friederwitzer v Friederwitzer, 55 NY2d 89, supra). The existence or absence of any one factor is not determinative ( Eschbach v Eschbach, 56 NY2d 167, supra). Among the factors to be considered are the original placement of the child, the length of the original placement, the quality of the home environment and parental guidance each parent can provide, the ability of each parent to provide for the child's financial, emotional and intellectual development, and the relative fitness of the respective parents ( Eschbach v Eschbach, 56 NY2d at 172; Faunteleroy v Mercado , 5 AD3d 482 [2nd Dept 2004]). While the expressed wishes of the child are also a factor to be considered where the child is of sufficient age to articulate his needs and preferences ( Zucker v Zucker, 187 AD2d 507 [2nd Dept 1992]; Matter of Robert T. F. v Rosemary F., 148 AD2d 449 [2nd Dept 1989]), his wishes are by no means determinative. The recommendations of any court-appointed forensic expert and the Law Guardian are also factors that must be considered unless they are unsupported by the record ( Harvey v Share, 119 AD2d 823 [2nd Dept 1986]; Picot v Barrett , 8 AD3d 288 [2nd Dept 2004]; see also McGivney v Wright, 298 AD2d 642 [3rd Dept 2002] lv denied 99 NY2d 508).
In addition, the court must consider the stability and companionship to be gained by keeping siblings and half-siblings together ( Faunteleroy v Mercado , 5 AD3d 482, supra). To separate them unnecessarily, is likely to be harmful ( see, Obey v Degling, 37 NY2d 768, 771; Eschbach v Eschbach, supra at 173). The Court recognizes, however, that while keeping half-siblings together may be an important factor, it is not determinative ( see MACROBUTTON HtmlResAnchor Johnson v Johnson, 202 AD2d 584 [2nd Dept 1994] app den {PRIVATE HREF="http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl vc=0 DB=578 SerialNum=1994194038 FindType=Y AP= fn=_top rs=WLW6.09 mt=NewYorkLegalResearch vr=2.0 sv=Split" MACROBUTTON HtmlResAnchor 83 NY2d 760). In addition, the court is required to consider the effect of proven acts of domestic violence upon the best interests of the child ( Assini v Assini , 11 AD3d 417 [2nd Dept 2004]; Machado v Del Villar, 299 AD2d 361 [2nd Dept 2002] [past threats of domestic violence were properly considered by the trial court]).
Since children are usually best served when they are nurtured by and have contact with both parents ( Daghir v Daghir, 82 AD2d 191 [2nd Dept 1981], affd 56 NY2d 938; Olmo v Olmo, 140 AD2d 677 [2nd Dept 1988]), another factor to consider is the effect that an award of custody to one parent will have on the child's relationship with the other parent ( Young v Young, 212 AD2d 114 [2nd Dept 1995]). The court must also consider the need for stability in the child's life and that custody should be established on a long-term basis whenever possible ( Dintruff v McGreevy, 34 NY2d 887; Miller v Lee, 225 AD2d 778 [2nd Dept 1996]). Toward that end, courts are reluctant to modify existing custody orders absent proof of changed circumstances and that the change will enhance the child's interests or that the prior custodian is unfit or less fit to continue in that role ( Simmons v Budney, 5 AD3d 389 [2nd Dept 2004]). Accordingly, the court must also consider proven acts of parental unfitness ( see e.g., In re Dwayne McM., 289 AD2d 29 [1st Dept 2001] [respondent mother's consent to a finding of neglect was sufficient to support an award of custody to the children's father]; Whitley v Whitley, 33 AD3d 810 [2nd Dept 2006] [Family Court properly awarded custody to the father, who obtained temporary custody after the children were removed from the mother upon a finding of neglect, since he demonstrated his ability to provide for them both financially and emotionally]; Anderson v Sparks , 18 AD3d 656 [2nd Dept 2005] [mother's refusal to follow therapy and medication discharge plan after her release from a psychiatric hospital, and refusal to ensure that the child attended school, supported a neglect finding and an award of custody to the father to whom temporary custody had been granted during the pendency of the neglect proceeding, where he enrolled the child in school and provided a stable home in which the child was doing well]; Linda D. v Renee D. , 40 AD3d 1201 [3rd Dept 2007] [father's previous adjudication of neglect, his criminal conviction and arrest for possession of marihuana, supported a change of custody to non-parent relatives]; Daniel R. v Noel R.,195 AD2d 704 [3rd Dept 1993] [custody modified based on findings that the child had been subject to abuse in the home of the custodial parent]; In re Sekou E., 32 AD3d 1024 [2nd Dept 2006]; [evidence of father's use of excessive corporal punishment against the child established extraordinary circumstances required to award custody to the maternal great-grandmother]; Bernthon v Mattioli , 34 AD3d 1165 [3rd Dept 2006] appeal withdrawn 8 NY3d 918 [Family Court did not abuse its discretion in basing its neglect finding and modification of custody upon evidence that respondent used the child as a decoy during shoplifting]; see also In re Amber VV., 19 AD3d 767 [3rd Dept 2005] [despite respondent stepfather's derivative neglect of child, continuation of custody with the child's mother was appropriate where the mother was acutely interested in child's welfare and was supportive of him while the biological father was inattentive and unable to meet the child's needs]; Jacqueline Sharon L. v Pamela G ., 26 AD3d 250 [1st Dept 2006] [finding of neglect was insufficient, in and of itself, to deny the mother without a full hearing exploring the issue of whether extraordinary circumstances and best interests existed to justify divesting her of custody]).
Where however, as here, custody was originally determined by an informal agreement between the parties, it is entitled to less weight than a custody disposition after a plenary trial ( Brown v Marr , 23 AD3d 1029 [4th Dept 2005]; see also Carl J.B. v. Dorothy T., 186 AD2d 736 [2nd Dept 1992]; Murray v McLean, 304 AD2d 899 [3rd Dept 2003]), and is only one of many factors to be considered in determining whether modification is appropriate ( see Grigoli v Grigoli, 29 AD3d 792 [2nd Dept 2006] [the existence of a prior agreement is not determinative of what custodial arrangement is presently in the child's best interest]; DeCaprio v DeCaprio, 219 AD2d 575 [2nd Dept 1995]; Neu v Neu, 303 AD2d 509 [2nd Dept 2003]; Young v Young, 212 AD2d 114, supra; Morrow v Morrow, 2 AD3d 1225 [3rd Dept 2003] [since no prior custody order was in effect at time modification of custody proceeding was commenced, there was no requirement that the movant prove a "sufficient change in circumstances" and proceeding should be treated as an initial custody determination addressing the best interests of the child]).
In the instant case, ACS acknowledges that the mother has been compliant with all referrals for services and it has introduced no evidence to establish that Willis would be at "imminent risk" if he were returned to her care. Accordingly, if this were a child protective proceeding, involving a removal and a placement with a foster parent or a kinship resource, the Court would be required to immediately return the child to the mother's care (FCA § 1028 [a]).
That is not what happened here. In the instant case, the child has been paroled to a parent, the non-respondent father, after being subjected to an emergency removal and a brief stay in a kinship foster home. The mother did not request a FCA § 1028 until Willis left foster care and was paroled to the father. Although her request for a hearing was granted, she repeatedly failed to go forward on the numerous occasions that hearings were scheduled at her request.
Willis has now resided with the father and his family in West Virginia for nine months and is reportedly doing well. The father has filed for custody and there has been no prior judicial determination or written agreement between the parties with respect to that issue. Accordingly, the prior de facto custodial arrangement is entitled to less weight.
Under these circumstances, the Court holds that the child's interests must be considered prior to any modification of the original order of parole. Numerous factors support this result not least, the child's need for stability since he should not shuttled back and forth between the parents merely because of changes in their circumstances during the pendency of these proceedings.
The Court does not possess adequate relevant information to enable it to make an informed and provident determination as to the child's best interests without a hearing. Little testimony or documentary evidence has been introduced about the quality of the parents' respective homes, the guidance that each of them can provide, their relative abilities to provide for their son's financial, emotional and intellectual development, their relationship with the child prior to the commencement of this litigation or the relative fitness of the respective parties. The allegations of child neglect by the mother and domestic violence by the father, remain just that: allegations, none of which have been established by the required quantum of evidence. The record is likewise devoid of any evidence concerning Willis's current wishes. Nor has any evidence been adduced regarding the impact of having been separated from his mother and half-siblings. While it has been established that Samantha misses her half-brother very much, the impact upon Willis and his half-sister Christina is far less clear.
Finally, the impact of the move on the quantity and quality of Willis' present and future contact with the mother and half-siblings, whether his life will be enhanced economically, emotionally, or educationally by the move, and the feasibility of preserving his familial relationships through visitation arrangements, must be fully explored at a hearing. A related but different question is which parent is more likely to encourage ongoing contact between the child and the other parent.
These issues can only be resolved after a full evidentiary hearing. In the meantime, the Court will conduct a FCA § 1061 hearing to determine whether to modify its prior parole order upon a showing of good cause and that the child's best interests support that result.This standard is similar to the standard that the Court would apply if it were to conduct a hearing to determine temporary custody.
For each of the forgoing reasons, it is
ORDERED, that the parole of the child Willis to the father is continued pending further order of the Court; and it is further
ORDERED, that the fact-finding hearing on the child protective proceeding shall take place on January 7 and 9, 2008; and it is furtherORDERED, that the attorneys are directed to immediately contact the Part's court attorney, to discuss the appointment of a forensic evaluator and schedule dates for the dispositional hearing, if any, and the custody hearing.