Opinion
NN-XXXXX-19
08-07-2019
In the Matter of Legend J. A Child Under Eighteen Years of Age Alleged to be Neglected by Roderick J., STEPHANIE S., Respondents.
Chelsea Bernardi, Esq. Family Court Legal Services Administration for Children's Services Brooklyn, New York Mary Gibbons, Esq. Family Defense Practice Brooklyn Defender Services Brooklyn, New York For the Respondent Father Fred Wertheimer, Esq. 26 Court Street, Suite 2410 Brooklyn, New York For the Respondent Mother Kelly Ballinger, Esq. Juvenile Rights Practice Legal Aid Society Brooklyn, New York For the Child
Chelsea Bernardi, Esq. Family Court Legal Services Administration for Children's Services Brooklyn, New York Mary Gibbons, Esq. Family Defense Practice Brooklyn Defender Services Brooklyn, New York For the Respondent Father Fred Wertheimer, Esq. 26 Court Street, Suite 2410 Brooklyn, New York For the Respondent Mother Kelly Ballinger, Esq. Juvenile Rights Practice Legal Aid Society Brooklyn, New York For the Child Jacqueline B. Deane, J.
Procedural History and Factual Background
This Court held a contested emergency hearing pursuant to Family Court Act § 1027 ("1027") after the Administration for Children's Services ("ACS" or "Petitioner") requested a removal of the newborn subject child from the Respondent mother, Ms. S and the Respondent father Mr. J. The Court held the 1027 hearing beginning on June 11th and ending August 6th. During the course of the hearing, Legend was ready for discharge from the hospital and was placed in non-kinship foster care. Just recently, a maternal cousin came forward as a possible resource who ACS is seeking to clear. The parents have agency supervised visits 3 times per week and the Court granted sandwich visits with some unsupervised time which began successfully last week. There have been no issues of any risk to the infant in the visits and the parents have demonstrated an ability to care for Legend. The Attorney for the Child ("AFC") opposes return at this time due to the early stage of the parents' involvement in services.
The underlying neglect petition was filed on June 10, 2019 and involves neglect allegations based on Ms. S's history of mental health diagnoses and allegations relating to the Respondent father's "aggressive" behavior at the hospital and the child safety conference. At the hearing, the Administration for Children's Services ("ACS" or "Petitioner") called the investigating ACS caseworker and a doctor from Bellevue. Both Respondents submitted to imminent risk evaluations at the court mental health clinic and testified on their own behalf.
The Court will not review all of the testimony as it was laid out extensively in counsel's summations and the factual disputes are minimal. Rather, the predominant issue here is whether these facts give rise to sufficient concerns about the parents' mental and emotional states to meet the standard of imminent risk to Legend if he were returned to them at this time. Legal Analysis
Family Court Act §1028 states:
Upon the application of the parent for the care of a child temporarily removed under this part the court shall hold a hearing to determine whether the child should be returned 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.In Nicholson v Scopetta, 3 NY3d 357 [2004], the Court of Appeals required that the Family Court "weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim." Id.
First, it is important to take note of the strengths of both parents. Ms. S has been open and honest about her mental health history to her prenatal care provider, the MHS doctor and to ACS. She testified credibly that she is working on identifying coping mechanisms for the stress she has experienced since Legend's birth and is just beginning to establish a support network with family here in NYC. Mr. J has considerable parenting experience, in contrast to this being Ms. S's first child. During his testimony, Mr. J was willing to recognize the mistakes he has made in handling several situations since his son's birth and took responsibility for them before this Court. He was forthcoming about the significant trauma he experienced as a child to the MHS doctor and testified that he was willing to engage in trauma-focused counseling and anger management. Mr. J was able to articulate better options for handling conflictual situations in the future. Both parents presented themselves to the Court in a calm and respectful manner throughout these proceedings and demonstrated their commitment to caring for their son and their intention to follow any court orders deemed necessary.
The Court has also considered the question of whether to release Legend to one parent and exclude the other. However, this is a case where these two individuals appear to be stronger as a parenting unit than separately as they support each other and have different and strengths and challenges which are complementary.
Against the backdrop of these strengths, however, the Court also takes note of the risks established by ACS. Ms. S's mental health history is significant in that she was hospitalized twice when she was living down South in 2016-17 after having auditory and visual hallucinations, and twice in the time since this hearing began on June 11th, briefly after experiencing a panic attack in early June and for a longer period due to stress and insomnia just recently in July. While the Court appreciates the impact that the stress of ACS's involvement has had on Ms. S, caring for a newborn is also stressful, especially in a shelter setting and under on-going ACS supervision. Therefore, more time is needed to ensure that Ms. S is stable, will continue with her new treatment providers, and that her current medication regimen is the correct one for her to safely care for Legend.
Mr. J has demonstrated a tendency to be quick to anger when he perceives being treated unfairly or poorly by others, leading to provocative language and occasional outbursts where property has been damaged and, at least in the case of the ACS security guard, physical harm threatened. Everyday life in NYC has the potential to trigger these responses in Mr. J, a reality compounded by dealing with bureaucracies such as the shelter system, public assistance and most importantly ACS and the foster care agency, which will need to provide on-going supervision. There have already been instances where the parents have felt a lack of respect from agency personnel and while these feelings may well be legitimate, the issue is how the situations are handled in the moment. If Legend was present, he could be at risk of harm either accidentally by Mr. J or due to the actions of other people involved who might themselves respond violently or call the police, further elevating the potential for conflict. While the Court does not doubt the sincerity of Mr. J's belief that he would not again let his emotions cause him to act in a verbal or physically provocative way, Mr. J's potential for volatility is likely due to his trauma history which cannot simply be willed away or easily controlled. Since Mr. J has only just completed intake, he needs time to begin anger management classes and engage in meaningful therapy to assist him in managing his emotions in a sustained way.
The Court is very troubled by the manner in which Bellevue Hospital handled the parents' stated concerns about their treatment by staff and the lack of any attempt to hold a meeting with them to address these concerns along with the hospital's concerns about Mr. J's behavior before barring him from visiting his newborn son. Childbirth and the days after are an extremely exhausting and emotional time for all new parents, and staff should be mindful that some parents also have trauma histories which may exacerbate their responses to the stress of these emotions. It is surprising to the Court that a hospital like Bellevue - which is known for its mental health care and knowledge of trauma-informed practices — was not better able to de-escalate this conflict with the parents in this case. The element of implicit and at times overt racism in the labeling of the parents as "aggressive" must be acknowledged. This failure on Bellevue's part was particularly unfortunate because the level of tension and conflict at the hospital set a chain of events in motion that, at a minimum exacerbated, and may well have created the immediate issues that led to ACS seeking to remove Legend from his parents' care. However, this Court's obligation is to make orders focused on Legend and his safety, rather than compensating the parents for the poor treatment they may have received.
Additionally, under Nicholson, the Court must balance the risk of harm to Legend if he is returned to his parents against the backdrop of the harm of his removal. While this Court fully acknowledges that a harm is done every day Legend cannot be with his parents, the Court is hopeful that the maternal cousin will be approved, and that arrangement will allow Legend to be with family potentially in an environment that the parents can more freely visit.
Thus, for the reasons stated above, the Court finds that ACS has met its burden of establishing imminent risk to Legend if he was returned to his parents today and ACS's application for the remand of the subject child pursuant to Family Court Act § 1027 is granted at this time.
However, the Court also believes that the parents have demonstrated the ability to safely care for the subject child unsupervised for more extended periods of time. Therefore, the agency sandwich visits are to include gradually increasing unsupervised time as follows:
8/7-10: 3 hours unsupervised per visit
8/14-17: 5 hours unsupervised per visit
8/21-23: at least 1 full day unsupervised visit
8/28-29: a hotel over-night visit to continue on a weekly basis
The opportunity for more extended unsupervised time with Legend will either allow the parents to demonstrate their ability to care for him safely fulltime or assist this Court and ACS in identifying any additional supports that are needed before Legend is returned to the parents' care.
The progression and expansion of visitation is on the following conditions:
Ms. S is to continue with her mental health treatment and medication management as recommended and complete a parenting skills class.
Mr. J is to attend an anger management class and engage in trauma-focused mental health counseling.
ACS is ordered to process the paperwork to ensure the hotel over-nights can begin on 8/28 and provide the parents with diapers and any other necessities for the unsupervised visits. Dated: August 7, 2019 ENTER: __________ The Hon. Jacqueline B. Deane