Opinion
NN-XXXXX-X/17
09-18-2017
In the Matter of Wunika A. Leonidos A. Nila A. Children under Eighteen Years of Age Alleged to be Neglected by Wilda G. Charles A., Respondents.
Diana Shea, Esq. Attorney for the Petitioner Administration for Children's Services Family Court Legal Services Wendy Cheng, Esq. Attorney for the Respondent mother Brooklyn Defender Services Family Defense Practice Charles A., pro se Yuval Sheer, Esq. Attorney for the Subject Children Legal Aid Society, Juvenile Rights Practice
Diana Shea, Esq. Attorney for the Petitioner Administration for Children's Services Family Court Legal Services Wendy Cheng, Esq. Attorney for the Respondent mother Brooklyn Defender Services Family Defense Practice Charles A., pro se Yuval Sheer, Esq. Attorney for the Subject Children Legal Aid Society, Juvenile Rights Practice Jacqueline B. Deane, J.
Procedural History
This Court held a contested emergency hearing pursuant to Family Court Act § 1028 after the Respondent parents, Mr. A and Ms. G, requested the return of their three children aged 10, 4, and 1. The parents' application was supported by the Attorney for the for the Children ("AFC"). The hearing began on August 25th and has been ongoing for four weeks. The Administration for Children's Services ("ACS" or "Petitioner") introduced several exhibits and called 7 witnesses: the paternal grandmother and her husband; Ms. K, the grandmother's friend; Ms. B, an unrelated person who had an encounter with Mr. A; the ACS Caseworker Ms. Brown and her supervisor Ms. Burke; and the foster care case planner Ms. Brooks. On September 8th, which was scheduled to be the last day of ACS's direct case, ACS requested an adjournment to call the grandmother's neighbor as a witness. The Court found that ACS had not exercised due diligence in timely locating that 8th witness so denied the adjournment but granted ACS the opportunity to call that witness on their rebuttal case. The Respondent father declined counsel at his first court appearance after the Court conducted a "searching inquiry" as to his decision and found that he was knowingly waiving his right to be represented by a lawyer. Thus Mr. A has represented himself pro se throughout this hearing. Each Respondent testified on their own behalf and introduced several exhibits. On Friday, September 15th, ACS re-called Caseworker Supervisor Burke as a rebuttal witness and once again requested an adjournment for the testimony of the neighbor, this time requesting another five-day adjournment of the emergency hearing despite the Court having reserved the entire morning to finish the hearing. The Court did not find good cause to adjourn the hearing particularly since the added benefit of the witness's testimony to ACS's case for imminent risk would be negligible given that the incident the neighbor allegedly witnessed had been fully testified to by the step-grandfather, and she would merely be corroborating his testimony. See Family Court Act § 1028 ("Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned.") However, after summations, since the Court was going to adjourn over the weekend for its decision, ACS was offered the opportunity to call that witness this morning. The witness was again unable to appear.
Counsel for ACS stated that she was waiting for the paternal grandmother to provide contact info for this witness and only received it on that date. However, ACS made no effort to send an investigator or caseworker out to the building where the grandmother and her neighbor live in advance of the hearing to try to contact the witness directly.
The Court does not fault this witness in any way for her failure to appear on dates where she originally indicated her availability to ACS as she was grieving the recent death of her young son. However, the latest adjournment date ACS requested is the day after his funeral and the Court finds it highly speculative that she is any more likely to appear on this later date. This was another factor the Court considered in weighing whether to find good cause to further prolong this already unusually long 1028 hearing in contradiction to the clear statutory right of the parent's to an expedited hearing.
ACS filed this neglect petition on July 13, 2017, and amended it on July 21st; the children were removed since July 17th. The allegations in the petition include: 1) an alleged assault on June 29, 2017, by the parents on the paternal grandmother in the presence of the subject children; 2) allegations of corporal punishment by the Respondent father with his hand and a belt; (3) regular use of marijuana by the Respondent father in the home in the presence of the children; and (4) that the children Wunika and Leo have slept on mats for several weeks in their home and were "dirty and unkempt" on the date interviewed by the caseworker. Neglect Petition, amended 07/21/17, Kings County Family Court. Unfortunately, ACS has not been able to find a foster home which can accommodate all three subject children so the eldest child, Wunika, has been separated from her siblings since placement from the Children's Center. Since the children have been removed, the parents have been consistently visiting supervised at the agency 2-3 times per week and all visits have gone extremely well with ACS reports commenting on the close bond and loving relationships between the parents and their children. On September 8th, the Court ordered "sandwich visits" three times per week for the 10-year-old subject child Wunika which provide for 2 hours of unsupervised time with her parents while this hearing is pending to mitigate some of the demonstrated harm that the child has been suffering during the removal and to assist the Court in assessing whether the parents will continue to comply with court orders going forward. ACS sought a stay of that order from the Appellate Division on September 11th which was denied and 3 sandwich visits occurred last week with no concerns or any violations of the court's orders reported. On September 15th, the Court expanded those visits to allow a sandwich visit that afternoon for all 3 children and unsupervised visits for Wunika for 5 hours each weekend day. Prior to issuing this decision, the Court received an extremely thorough 3-page report that all of these visits had gone well and that the parents had complied with all court orders including returning the children on time from each and every visit.
Factual and 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.
As an initial matter, the Court does not consider the allegations in the petition regarding marijuana use by the father, sleeping on a mat, and the children's cleanliness relevant to the imminent risk assessment here. Furthermore, these allegations were mitigated by testimony at the hearing that the reason the children were sleeping on mats was that the parents had just moved from a shelter to this apartment and had inflatable beds which Leonidos had "popped", and that the children's "unkempt" appearance was an isolated occurrence on the day the parents were arrested for the alleged assault of the grandmother and not indicative of their general appearance. As to the Respondent father's alleged frequent marijuana use, the Court has had occasion to observe him in court on multiple dates over the past month, and found him to be entirely coherent and quite articulate and intelligent in his self-representation throughout this proceeding. The Court has never observed any signs of any impairment. Therefore, whatever marijuana use may have existed in the past, the Respondent father appears to be able to control it and appears able to follow court orders against using it in the presence of the children. As to allegations of corporal punishment, the Court finds that both parents testified credibly and consistently that they use a very deliberate system of consequences for the children's misdeeds that begins with age appropriate non-corporal punishment like timeouts and written lessons, and that they only resort to the use of a spanking over clothing for more serious infractions like physical fighting among the siblings. If the parents have used a belt on occasion, even this may not rise to the statutory requirement for "excessive corporal punishment" as no marks have been observed by any official on any of the children including Wunika who is school age and there have been no prior ACS reports regarding this family whatsoever. In any event, the Court is persuaded that the Respondents will continue to comply with court orders, including one prohibiting corporal punishment were the children to return home.
Although ACS has included the above allegations in their imminent risk argument, the primary thrust of their position is that the Respondent father, on one occasion joined by the Respondent mother, engaged in verbal and physical altercations with adults in the presence of the subject children. At the 1028 hearing, there was testimony in great detail about three examples of such altercations. The Court will not review all the evidence of these incidents here, however, two related altercations occurred on June 29th. The earlier event that day occurred at the home of the paternal grandmother which was testified to by her husband, Mr. K, who was home alone at the time, and allegedly involved approximately 5 to 9 strong kicks on the door by the Respondent father in the presence of the Respondent mother and the subject children. Mr. K testified that he was looking through the peephole and could hear the father calling him names and cursing at him. Mr. K also claimed to see the subject child Wunika appearing to videotape the events on her cell phone although he denied this when speaking with the case worker, the parents denied on the stand that Wunika owns a cell phone, and no evidence has been produced of the video's existence. According to Mr. K, when he did not open the door, the father engaged in another verbal altercation with a neighbor who was in the hallway and was able to observe the events. Mr. K testified that this neighbor later informed him that the father had threated "to kill her and her child." This is the witness ACS sought to call initially on their case in chief and then on rebuttal.
The later incident occurred when the Respondents and the subject children allegedly approached the paternal grandmother, Ms. W, and her friend Ms. J who were engaged in their service work as Jehovah's Witnesses on Avenue X in Brooklyn. As to this incident, both Ms. W and Ms. J testified that the Respondent mother approached the paternal grandmother and started slapping her at the instigation of the Respondent father. Both parents then allegedly began hitting Ms. W while her friend was nearby watching. Ms. W testified that she saw the subject children near the front of the building where she was initially approached by the family but that the fight occurred a short distance away. Neither witness was able to say where exactly the children were during the altercation. Ms. W was able to walk home after this incident and found the police in her apartment when she arrived, having been called by Mr. K to respond to the earlier door-kicking incident. Ms. W later went to the hospital for treatment of a headache and possible concussion.
The third incident occurred on July 4th in the Respondent's building which apparently has a workout room. The ACS witness to this event, Ms. B, testified to a verbal altercation between herself and Mr. A that ultimately led to a building staircase where he allegedly kicked her in the stomach. Ms. B claimed that Mr. A, whom she did not know before this date, was in the workout room with a woman she identified as the Respondent mother and three children but described the children as an older boy, middle boy and young girl. Ms. B acknowledged that she did not see the children when she was in the stairwell being kicked.
The Respondent parents denied participating in either incident on June 29th or being present at either location. As to the incident with Ms. B, the Respondent father admitted having a verbal dispute with her about her improper use of the building gym, as she was not a resident, but claimed she was the one who escalated the situation. Both he and Ms. G testified that neither she nor the children were present for this altercation as they were up in the apartment at the time. The Court does not deem it necessary at this time to definitively resolve the ultimate question of whether and precisely how these incidents occurred. Rather, for the purposes of this 1028 hearing, the Court finds a sufficient basis to presume that the incidents of June 29th occurred largely in the manner testified to by Ms. W and her husband and that there was an altercation between Mr. A and Ms. B on July 4th. Given this, had ACS called the neighbor to corroborate the step-grandfather's version of events, this additional evidence would not have impacted this Court's decision.
The Court has not heard any evidence of actual physical harm or even any direct risk of physical harm to any of the children during any of the alleged altercations. During the most serious one, which took place on the street, it is unclear how close the children were when the physical contact between the parents and Ms. W occurred and, given the ages of the two youngest children, they may well have not absorbed what was happening. The testimony of Ms. B, even if viewed in the light most favorable to ACS, revealed that the children were not present during the physical part of the incident. Furthermore, there has been no testimony concerning any actual emotional harm allegedly suffered by the children as a result of these incidents. In Nicholson v Scopetta, 3 NY3d 357, 376 [2004]. the Court of Appeals stated that,
[E]xposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori, exposure of a child to violence is not presumptively ground for removal and in many instances removal may do more harm than good.Certainly, the Court is concerned about the possibility that the Respondents threatened and/or physically harmed the children's grandmother even in the children's remote presence. However, there is a long history of family strife leading back to the trauma suffered by Ms. W and her son, the Respondent father, related to the murder of the father's sister when she was only 14 and Mr. A was 17. The paternal grandmother seems to have held the young Mr. A's rap music career indirectly responsible for the murder which led to feelings of guilt and anger on Mr. A's part, especially when he learned the killer may have actually been targeting his mother. Additionally, there is a clear clash of religious and world views between Mr. A and his mother where she has, at a minimum, strongly encouraged him to adopt her Jehovah's Witness faith. Thus, the children have never been close with their grandmother so the harm of witnessing the conflict between the family members is certainly less than it would be otherwise.
If accepted as true, these incidents show that the Respondent father has difficulty managing his anger in situations of conflict, perhaps in part due to the trauma he suffered as an adolescent. However, it appears that when it comes to the care of his children, there is no evidence of a lack of anger control by the father. Caseworker Brooks testified that she has never observed the children to show any signs of fear while with their parents at visits. Rather, both parents seem very intentional in their child rearing, reinforcing the children's self-esteem along with the importance of respect for their parents, foster parents and siblings. Caseworkers have heard the parents reminding the children of their love even when correcting their behaviors, showering them with affection such that Wunika has described missing daily hugs from her parents while in foster care.
It is notable that ACS did not offer proof of any prior criminal convictions against the father. Some criminal record would be expected if this was as serious an issue as ACS contends.
In Nicholson, the Court of Appeals recognized the real emotional harm that children often suffer when removed from their parents and required Courts to carefully balance that harm against risk of return. See Nicholson 3 NY3d at 378-79. This Court must "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.
Regarding the harm of removal, as a general matter, the casework progress notes describing the family's interactions at supervised visits are unusually effusive and depict an extremely strong bond between both parents and all of their children. One entry states: "The relationship amongst the family is very endearing. The parents constantly uplift and parade them with compliments of how intelligent and beautiful/amazing they are." Respondent Mother's Exhibit F, entry dated 8/23/17. In particular, harm is most evident here in the situation of the eldest child Wunika. Every report submitted by ACS has detailed the emotional and possibly physical harm that Wunika has suffered since separation from her family including her siblings. Wunika has not been able to sleep at night, is barely eating, and is very withdrawn within in the foster home to the point that the foster mother is considering asking that Wunika be moved to another home. The parents call Wunika every day to try to lift her spirits and sing to her on the phone when she is sad. Although the younger children are faring considerably better than their older sister in their separate foster home, the harm of their separation still exists. Nila is only 1 year old, a critical age for parent-child bonding that has implications for the ability to form emotional connections throughout life, and 4-year-old Leo has been observed to "display great love for his parents" as well as a strong emotional attachment to Wunika. See id.
Separations as brief as a week have been shown to negatively impact the mother-child relationship. Kimberly Howard, et. al., Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families, Attach Hum Dev. 2011 January; 13(1), 1. "Short-term disruptions can result in negative socio-emotional outcomes such as aggression and negativity." Id. at, 10. Extended, separations have been linked to low achievement in math and reading in middle childhood, id. at 11, and behavioral problems, such as increased likelihood of symptoms of borderline personality disorder in adolescence and adulthood. Id. at 2. Placing children in foster care has been found to "increase their likelihood of becoming juvenile delinquent during adolescence and requiring emergency healthcare in the short term." Joseph J. Doyle, Jr, Causal Effects of Foster Care: An Instrumental Variables Approach, www.mit.edu/jjdoyle/research.html(January 2011). In short, disruptions in the mother-child relationship can have many negative consequences for a child, some of which can last to adulthood and the "physical accessibility" of the mother has significant implications for positive child development. Id. at 13. See also Mokhtar Malekpour, Effects of Attachment on Early and Later Development, The British Journal of Development Disabilities, Vol. 53, Part 2, July 2007, No. 105, pp. 81-95. --------
Even accepting the allegations as true, the Court must assess whether court orders can be put in place that would eliminate or mitigate any imminent risk which would exist if the children were returned. Notably, both Respondents have obeyed the full stay-away orders of protection in favor of the grandmother and her husband since this case was filed over 2 months ago. Critical to the Court's decision is its assessment of the parents and their demeanor throughout this lengthy hearing. The Court had the unique opportunity to observe Mr. A and Ms. G over seven court appearances, some of them lasting for several hours of testimony. The Court has been extremely impressed by the parents' calm and focused demeanor on each and every court date. This was true despite their obvious pain at the separation from their children and the fact that, on two occasions, ACS violated this Court's orders regarding visits that would have helped to ease Wunika's suffering. One of these instances was so egregious that the parents would have been fully entitled to express their anger and yet Mr. A made the Court aware of this violation in a controlled, cogent and eloquent summation at this hearing in which he emphasized his love and devotion for his children and the ways in which ACS's actions were compounding the harm of their removal. Additionally, both Respondents completely maintained their composure throughout the portions of this hearing where the grandmother, her husband, and Ms. B testified against them about these incidents. The grandmother and her husband have also attended the majority of the court appearances and there have been no conflicts between the family members either inside the courtroom or in the waiting area outside. Finally, the Court received a report today when the Respondents had to meet with Wunika, the caseworker, and the foster mother regarding some of Wunika's misbehavior in the foster home. The detailed reports show that both of the Respondents handled themselves entirely appropriate in this potentially difficult meeting. Thus, it appears that Mr. A and Ms. G are able to control their behavior when necessary and there is no reason to believe they would not continue to do so as a condition of having the children returned to them.
The parents' actions during the pendency of this hearing is especially important in this case because another crux of ACS's argument regarding mitigation of risk is that the parent's belief system, which contends that they are not subject to the jurisdiction of the Family Court, means that they cannot be trusted to follow this Court's orders. To the contrary, the parents have shown respect for the Court both in their exemplary behavior in the courtroom and the way they have obeyed this Court's orders throughout their increased and expanded visitation. Additionally, both parents stated clearly and convincingly in their testimony that, although they do not acknowledge this Court's jurisdiction over them, they will follow ANY order this Court makes that will allow their children to come home. In fact, the Respondent mother has initiated her own engagement in counseling services and the Respondent father stated he intends to enroll as well as soon as his insurance is active even though there is no court order for the parents to do services at this time.
Furthermore, the parents do acknowledge and abide by the principles and laws of the United States Constitution to which this Court is also bound and the parents have participated fully in these proceedings consistently with the due process of law that the U.S. Constitution requires. The Court also notes that the First Amendment of the U.S. Constitution would not allow this Court to deprive these parents of their children solely because of their words and beliefs as long as those beliefs do not constitute imminent risk to the children. The Court does not find that to be the case here. This Court looks to the parents' actions since their children were removed as the best predictor of whether they would follow this Court's orders. This Court is persuaded that they will.
Finally, as Wunika is 10 years old, she is fully capable of reporting any concerns after being returned home to her attorney or the caseworkers who will be supervising the home, just as she has during the course of the investigation, which further reduces any concerns of risk. Notably, both of the younger children have been described as being highly verbal for their ages and, especially in Leo's case, would be capable of reporting any mistreatment after being returned home.
Thus, under the particularized facts of this case, the Court finds the harm of continued removal to be greater than any risk of a return home. The Court hereby orders that it is in the best interests of the subject children to be released back to the legal care and custody of their parents under the following conditions. The Respondents are:
1) to cooperate with ACS supervision including at least weekly announced or unannounced home visits.
2) not to engage in any verbal or physical conflicts with anyone in the presence of the subject children.
3) not to use any corporal punishment on the subject children.
4) not to discuss the court case or any statements the children have made or may make to their lawyer or caseworkers.
5) to comply with the full stay away temporary orders of protection on behalf of Ms. W and Mr. K.
6) not to use marijuana or other illegal substances, or be under the influence of those substances, in the presence of the subject children.
7) to comply with counseling services, as recommended. Dated: September 18, 2017 ENTER: ________________________________ The Hon. Jacqueline B. Deane