Opinion
11-02-2022
In the Matter of D.G., G.C., G.L., I.C., I.L., K.C., L.C., M.C., S.C., Children Under Eighteen Years of Age Alleged to be Abused by C.D., I.C., Respondents.
Administration for Children's Services, Family Court Legal Services (Noah Powlen of counsel), for Petitioner. The Bronx Defenders, Family Defense Practice (Kaitlyn Hartmann of counsel), for Ms. C, Respondent Mother. Goetz Vilsaint, Bronx, for Mr. D., Respondent Father. Aleza Ross, Bronx, for Ms. G, Non-Respondent Mother. Patricia Moreno, Bronx, Attorney for the Children G.C., K.C., and S.C. Rina Mais, Bronx, Attorney for the Children for Children D.G., G.L. and I.L. Patricia DeCola, Bronx, Attorney for the Children I.C., L.C., and M.C.
Administration for Children's Services, Family Court Legal Services (Noah Powlen of counsel), for Petitioner.
The Bronx Defenders, Family Defense Practice (Kaitlyn Hartmann of counsel), for Ms. C, Respondent Mother.
Goetz Vilsaint, Bronx, for Mr. D., Respondent Father.
Aleza Ross, Bronx, for Ms. G, Non-Respondent Mother.
Patricia Moreno, Bronx, Attorney for the Children G.C., K.C., and S.C.
Rina Mais, Bronx, Attorney for the Children for Children D.G., G.L. and I.L.
Patricia DeCola, Bronx, Attorney for the Children I.C., L.C., and M.C.
OPINION
Alicea Elloras-Ally, J.
On June 3, 2020, under Docket Numbers NA-XXXXX-XX/XX the Administration for Children's Services (hereinafter "Petitioning Agency"), filed an abuse petition pursuant to New York State Family Court Act (hereinafter "FCA") § 1012, against I.C. (hereinafter "Respondent Mother") and C.D. (hereinafter "Respondent Father") with respect to D.G., G.C., G.L., I.C., I.L., K.C., L.C., and M.C. (hereinafter "subject children"), born xx/xx/xx, xx/xx/xx, xx/xx/xx, xx/xx/xx, xx/xx/xx, xx/xx/xx, xx/xx/xx, and xx/xx/xx respectively. The subject child I.L. was released to the Respondent Mother under ACS supervision. The subject child D.G. was released to her non-respondent mother under ACS supervision. The subject children G.C., G.L., I.C. K.C., L.C., and M.C. were removed and remanded to the care and custody of the Petitioning Agency.
On June 23, 2020, the Petitioning Agency filed an abuse petition pursuant to FCA § 1012 against the Respondent Mother with respect to S.C. (hereinafter "subject child"), born xx/xx/xx. The subject child S.C. was released to the Respondent Mother under ACS supervision. On June 25, 2020, the subject children who were remanded were returned to the Respondent Mother's care under ACS supervision at the conclusion of a FCA § 1028 hearing. On July 2, 2020, the Court vacated the order and decision dated June 25, 2020, granting the FCA § 1028 hearing and remanded the subject children to the care and custody of the Petitioning Agency. The subject child S.C. was also remanded to the care and custody of the Petitioning Agency on July 2, 2020. On October 15, 2021, the Respondent Mother consented to an entry of an order of fact finding without admission pursuant to FCA § 1051(a). The Court adjudicated the subject children as a neglected children by the Respondent Mother.
On August 24, 2022, the Attorney for the Children I.C., L.C., and M.C. filed an Order to Show Cause requesting an Order that the visitation with the Respondent Mother for her clients be agency supervised. The Court granted interim relief issuing an order that visitation with I.C., L.C., and M.C. be agency supervised and a hearing is scheduled for November 30, 2022. On or about October 6, 2022, the Respondent Mother filed the instant Order to Show Cause requesting an order that (1) the agency schedule two agency supervised visits each week for all the subject children and the Respondent Mother; (2) the agency transport the subject children I.C. and S.C. to the agency for the second weekly agency supervised visit; or (3) the agency to pay for a cab for the foster parent, Ms. F., or her back up resource to transport the children I.C. and S.C. to the agency for a second weekly agency supervised visit. On or about October 20, 2022, the Attorney for the Child S.C. filed responsive papers. On or about October 24, 2022, the Petitioning Agency filed responsive papers. No other responsive papers were filed. After considering counsel's arguments expressed within their papers, the Court now rules upon the Respondent Mother's Order to Show Cause.
THE COURT'S RULING
Respondent Mother's Position:
The Respondent Mother argues that pursuant to FCA § 1030, the Family Court has broad discretion to enter suitable visitation orders in Article 10 proceedings, including reasonable and regularly scheduled visitation. FCA § 1030(a); Matter of Jessica F., 7 A.D.3d 708 (2d Dep't 2004); In Re Lucas D., 977 N.Y.S.2d 667 (Family Ct. Bronx County 2013). The Respondent Mother argues that the agency informed her on September 20, 2022, that they would not transport the subject children I.C. and S.C. to the agency for visitation instead proposing that the Respondent Mother travel from the Bronx to 14th Street in Manhattan to meet the foster parent, Ms. F., in the community and that Ms. F. would supervise the visitation. The Respondent Mother argues that the ACS Visiting Policy provides that "Case planners must facilitate at least bi-weekly visits and contact that is not limited to visits with parents when siblings are placed separately." See ACS Visit Policy at 2. The Respondent Mother is requesting that the agency follow the visitation policy and facilitate a second weekly agency supervised visit with subject children I.C. and S.C. The Respondent Mother is also requesting that agency staff supervise the visit and not delegate that duty to the foster parent, Ms. F. The Respondent Mother proposes that the agency pay for a cab for Ms. F.'s back up resource to bring the subject children to the second agency supervised visit.
Attorney for the Child S.C.'s Position:
The Attorney for the Child S.C. responds that the current visitation schedule is Monday from 5:00 p.m. to 7 p.m. and Wednesday from 3:00 p.m. to 5:00 p.m. The foster parent, Ms. F., works full time from 8:30 a.m. to 5:30 p.m. and has arranged with her employer to work from home on Mondays to be able to transport the children S.C. and I.C. to and from supervised visitation. The Attorney for the Child S.C. states that the back up resources have work schedules that do not allow them to provide transportation to the visit. Back up resource, Y.F., works in retail at a position that has a variable schedule and J.F. works 3:00 p.m. until 12:00 a.m. The Attorney for the Child S.C. also states that virtual visitation has been scheduled on Wednesdays and Fridays from 4:00 p.m. to 5:00 p.m. and that the Respondent Mother has consented to a second visit being conducted virtually. The Attorney for the Child S.C. consents to the relief being requested insofar as the Respondent Mother seeks an order that the agency be responsible for transporting the subject children S.C. to the second weekly visit with the Respondent Mother or alternatively, the second visit be held virtually if the Respondent Mother is consenting to this arrangement.
The Petitioning Agency's Position:
The Petitioning Agency responds that the agency arranged for the Respondent Mother to have community visits with the subject children S.C. and I.C. on Fridays supervised by the foster mother. The Petitioning Agency further states that the agency considered providing car-services transportation for the foster parent, Ms. F., and the children or for the back up resources and the children, but that those efforts have been futile. The Petitioning Agency notes that the Respondent Mother has agreed to the second weekly visit to be virtual. The Petitioning Agency argues that the plan to have a second weekly virtual visit adequately addresses the issues raised by the Respondent Mother's papers. There is nothing in the ACS visiting policy that is incompatible with the subject children's best interests. The Petitioning Agency also argues that there is nothing in the ACS visitation policy that places an obligation on a foster care agency or ACS to use case planner time and resources to transport foster children to a second weekly visit.
The Petitioning Agency further argues that a court order requiring an agency employee to regularly travel to and from a foster home to transport children to and from agency visits, when a reasonable alternative is available, would encroach on the agency's administrative discretion to allocate its scarce resources. See, e.g., Matter of Lorie C., 49 N.Y.2d 161; 400 N.E.2d 336; 424 N.Y.S.2d 395 (1980). The Petitioning Agency claims that such an order would detract from the agency's ability to provide needed attention to other children and families and would therefore undermine the agency's ability to perform its statutory functions.
The Court's Ruling:
While the Family Court is a court of limited jurisdiction (Kleila v. Kleila, 50 N.Y.2d 277, 282, 406 N.E.2d 753, 428 N.Y.S.2d 896 [1980]; King v. State Educ. Dept., 182 F.3d 162, 163 [2d Cir 1999]), the Legislature has granted the Family Court jurisdiction "to determine issues pertaining to a child's welfare consistent with the comprehensive services plan associated with foster care placement" (Matter of Sullivan County Dept. of Social Servs. v Richard C., 260 A.D.2d 680, 682, 687 N.Y.S.2d 470 [3d Dept 1999], appeal dismissed 93 N.Y.2d 958, 716 N.E.2d 700, 694 N.Y.S.2d 635 [1999]), and the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015-a and 18 NYCRR §§ 427.3(c)(1); 441.15. Matter of L.P., 28 Misc.3d 1204[A], 1204A, 2010 NY Slip Op 51148[U], [Kings County Fam. Ct. 2010]). State regulations authorize the Petitioning Agency to make special payments on behalf of foster children for items, costs, or services that are necessary for the child but are not included in the rate for board, care, and clothing. Such payments can include expenses necessary for family visits. 18 NYCRR § 427.3(c)(1). FCA § 1015-a allows the court to order a social services official to provide or arrange for services and help in order to protect the family, rehabilitate the family, or discharge the child from foster care including visitation services.
FCA § 1030 applies to cases in which subject children are in the temporary custody of the local social services district before a final order of disposition places the subject children in foster care; it provides that a parent has a right to reasonable and regularly scheduled visits and allows a parent to apply to the court for such visits. When children are placed in foster care, visitation is the most critical way for families to stay connected and to achieve family reunification. State regulations require that parents receive at least bi-weekly visits. However, this is only the minimum requirement, and families should receive the most frequent, least restrictive visits as possible.
The Petitioning Agency cites to the Matter of Lorie C., arguing that an order requiring the agency to transport the children I.C. and S.C. to the second weekly supervised visit would encroach on the agency's administrative discretion to allocate its scarce resources 49 N.Y.2d 161, 424 N.Y.S.2d 395, 400 N.E.2d 336 (1980). In the Matter of Lorie C., the New York Court of Appeals held that the Family Court exceeded its authority because it issued a broad, sweeping order in a Person in Need of Supervision (PINS) case that established a general overview of functions at the Department of Social Services. Although Lorie C. is a Court of Appeals case, it is easily distinguishable from this case in which the Respondent Mother is seeking an order for services for her individual family. Notably, the order issued in Lorie C. was pursuant to FCA § 255 and its scope is broader than FCA § 1015-a in that it goes beyond the social services official and applies to any state, county, municipal, and school district officer and employee. FCA § 255 authorizes the court to order these entities to "render such assistance and cooperation as shall be within his legal authority." Although FCA § 1015-a limits the court's authority to order services that are authorized or required by the comprehensive services plan, courts have interpreted the statute broadly and authorized the provision of a wide variety of services. In Daniel M., 166 Misc.2d 135, 631 N.Y.S.2d 470 (Fam. Ct. New York County 1995), appeal dismissed, 244 A.D.2d 1011, 664 N.Y.S.2d 903 (1st Dep't 1996).
In any situation where children are removed from a parent, visitation between the parent and children allows for continued contact while maintaining the bond between the parent and children. While the application made by Ms. C. lists the docket numbers for all the children, the arguments contained within the motion relate to the children I.C. and S.C. There are no arguments or concerns raised as to the other children's attendance at visitation.
After considering the arguments, the Court orders that pursuant to FCA § 1015-a, the foster care agency, Catholic Guardian Services, is to transport the subject children I.C. and S.C. to the second weekly supervised visit. The application made by Ms. C. seeks to ensure that she will have in person visitation twice weekly with the children I.C. and S.C. The Agency acknowledges that the current foster parent will have difficulty in meeting the second in person visitation weekly and acknowledges that the foster parent's backup resources are unable to support bringing the children to the second in person visitation. While the Agency argues that Ms. C. consented to the second visit being virtual, the court finds given the choice between a second weekly visit that is virtual or no second weekly visit, most parents would feel constrained to accept the virtual option. The court does not find that a virtual visit provides the same quality of interaction between a parent and child. In this case the child, SC is approximately 2 years and 4 months old and would be unrealistic to believe the child would be able to fully participate in the same manner during a virtual visitation as during an in-person visit. The Agency has not provided an alternative to the in-person visit that would be in the children's best interests. The court does not find the Agency's suggestion to have the second in person visit in the community close to where the children reside in foster care to be acceptable, given the unpredictability of the weather and temperatures will be turning colder. The court does not find that would be in the children's best interest to have the visitation supervised by the foster parent or another resource, if the parent is objecting. The court finds it is in the best interest of the children I.C. and S.C. to direct that the agency to transport the children to the second in-person weekly visitation because without productive, regular contact between a parent and child, reunification becomes virtually impossible to achieve.
Wherefore, the Respondent Mother's application is granted to the extent that the foster care agency, Catholic Guardian Services, is to transport the subject children I.C. and S.C. to the second weekly supervised visit. The court grants Motion # 5 on NA-XXXXX/XX and Motion # 14 on NA-XXXXX/XX. The court denies Motion #12 on NA-XXXXX-X/XX and NA-XXXXX-X/XX; Motion #13 on NA-XXXXX-XX and NA-XXXXX/XX; and Motion # 14 on NA-XXXXX/XX as there were no issues or concerns raised about these children attending visitation. This constitutes the findings, decision, and order of the Court.