In the Matter of C.F., Date filed: 2024-12-10, Court: Family Court, New York, Judge: Judge Yael Wilkofsky, Case Number: (redacted):
PLEASE TAKE NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
DECISION AND ORDER On or about November 29, 2024, the petitioner, Administration for Children’s Services (“ACS”), filed Family Court Act (“FCA”) Article 10 neglect petitions on behalf of the subject children C.F. and M.L. against the respondent mother K.S. (“respondent mother” or “K.S.”). The petitions allege that the respondent mother fails to provide the subject children with proper supervision or guardianship by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment, on the subject child C.F. Specifically, the petitions allege that the respondent mother hit C.F. with a belt, which resulted in a bruise on C.F.’s shoulder, that C.F. was scared to go home to his mother, that the maternal grandmother heard C.F. yelling and screaming, saw the respondent mother hit C.F. with a belt, and that when the maternal grandmother tried to stop the respondent mother from hitting C.F. with the belt, the respondent mother told the maternal grandmother to “mind her fucking business.” The petitions also allege that based on such actions, the child M.L. is derivatively neglected. At intake on the neglect petitions, the petitioner made an application for the remand of the subject children pursuant to FCA §1027 based on the allegations in the petition. The respondent mother opposed the remand and requested a hearing. The Court commenced the FCA §1027 hearing at intake, temporarily removed the subject children from the respondent mother and directly placed them with the maternal grandmother during the pendency of the hearing. The Court also issued a full stay away temporary order of protection against the respondent mother on behalf of the subject children with a carve out for agency supervised in-person visitation and virtual visitation supervised by the maternal grandmother.
Pursuant to FCA §1027, after a hearing, the court may remove a subject child from the care of the respondent parent only if the petitioner can establish, by a preponderance of the evidence, that release of the subject child to the respondent parent’s care presents an imminent risk to the child’s life or health. As part of its assessment, “a 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” (see Nicholson v. Scoppetta, 3 NY3d 357, 378 [2004]). “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” (Id.).
After a full hearing, the court denies the petitioner’s application pursuant to FCA §1027 as petitioner has not established, by a preponderance of the evidence, that releasing the subject children to the respondent mother presents an imminent risk to the subject children’s life or health that could not be mitigated with the issuance of certain court orders. In making its determination, the Court relies on the following documentary evidence offered at the hearing: photographs of the subject child C.F. showing bruises on his shoulder; an Oral Transmittal Report (“ORT”) dated November 20, 2024, which established that a report was called in to the State Central Register (“SCR”) on November 20, 2024 by a mandated reporter, alleging that the subject child was hit by the respondent mother and that he was scared to go home; a prior order of the Family Court, Bronx County, dated September 15, 2023, under docket numbers NN-xxxxx-23 and NN-xxxxx-23, releasing the subject children to the respondent mother, who was a non-respondent in that case, under ACS supervision; a prior order of fact-finding and disposition issued by the Family Court, Bronx County, dated February 14, 2024, under the same docket numbers, which entered a finding of neglect against B.L., the respondent in that matter, because he perpetrated acts of domestic violence against the respondent mother in the presence of the subject children and caused injury to C.F., and, inter alia, released the subject children to the custody of the respondent mother under six months of supervision, until August 14, 2024; and a Certificate of Completion from the National Alliance on Mental Illness (“NAMI”), stating that “[K.S.] has completed the NAMI Basics OnDemand Education Program — 15 hours.” Additionally, the Court relies on the testimony of an ACS Child Protective Specialist (“CPS”), the respondent mother and a Legal Aid Society Social Worker (“SW”).
CPS credibly testified as follows. The case was called in to the SCR on November 20, 2024 by C.F.’s school guidance counselor. As part of his child protective investigation, CPS first spoke to C.F.’s school guidance counselor, who reported that C.F.’s teacher said he was sleeping in class and when she asked if he was okay, C.F. said his shoulder hurt because the respondent mother hit him with a belt. C.F.’s school guidance counselor also reported that he spoke to C.F., who also told him that the respondent mother hit him with a belt and that he was scared to go home. C.F. was interviewed at the Child Advocacy Center and the interview was recorded. During the interview, C.F. stated that he got the bruise on his shoulder after he fell off his bunk bed. He also stated to the interviewer that he had something else to say but not while being recorded. Thereafter, C.F. was interviewed a second time and that interview was not recorded. At the second interview, C.F. stated that the respondent mother hit him with a belt and other objects, including a hanger, and that the maternal grandmother told him to lie about what happened. C.F. further stated that he wanted to be home with his mother and that he was not afraid of her. CPS also spoke with the maternal grandmother about C.F.’s injury. The maternal grandmother initially stated that C.F. fell off the bed and hit his shoulder. However, the maternal grandmother then told CPS that she heard C.F. yelling and screaming, that she went to his room and tried to intervene to stop the respondent mother from hitting C.F., and that the respondent mother told the maternal grandmother to “mind her fucking business.” CPS also spoke with the respondent mother, who reported that the school had called her because C.F. was falling asleep in class. She stated that she initially attempted to discipline C.F. for that behavior by taking away his electronic devices because she believed the electronic devices were playing a role in C.F. falling asleep in class. However, she admitted that she did hit C.F. with a belt, that she felt sorry for doing it, that it was the first time she had ever used a belt to discipline C.F. and that it would be the last time she would ever do so. The respondent mother also told CPS that she was willing to engage in services.
The respondent mother also credibly testified as follows. Prior to the filing of this case, she lived with the subject children and her mother, the maternal grandmother, and that since this case was filed, she has been staying at hotels and the homes of different family members and friends. C.F. has behavioral issues, both at home and at school, and with the help of her counsel, the respondent mother enrolled in, and completed, a 15-hour parenting course with NAMI. The parenting course is a program for parents who provide care for children who are experiencing mental health symptoms. The program helped respondent mother learn how to treat C.F. based on his own mental health issues and provides resources for both the respondent mother and C.F. The respondent mother learned a lot in the program about mental illness, medication and therapy, how to speak to a child with a mental illness, that it is okay for her to express herself with C.F. even if he is having a hard time and that instead of discipline, the respondent mother could use a reward-based system with C.F. where he feels like he is earning the things that he wants. The respondent mother stated that she is willing to engage in individual therapy to heal from the traumas she experienced in her own life and wants to enroll in family therapy for herself and C.F. ACS was involved with the family most recently as the summer of 2024 after a neglect case was filed against M.L.’s father based on allegations that he perpetrated acts of domestic violence against the respondent mother in the presence of the children. During the pendency of that case, ACS frequently visited the respondent mother’s home to check on the subject children and never saw any marks or bruises on the subject children or had any concerns about the respondent mother’s care of the subject children.
At the hearing, when asked whether she hit C.F. with a belt as a form of discipline, the respondent mother invoked her right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution. However, the respondent mother credibly testified about how she would discipline C.F. in the future. She testified that she would not use corporal punishment, as she knows that it is wrong and illegal, that using corporal punishment is not fair to the child because “it does not solve anything,” that using corporal punishment makes an existing problem worse and that “it is not the right way to go about things.” She testified that instead, she would continue to discipline C.F. by taking away his electronics, including video games and his cell phone, by limiting sweets and providing C.F. with healthier snacks so that he has to earn the things he wants, and most importantly, she would speak with C.F. and explain that she is there to help him. She testified that she has learned from her parenting course that going forward, she must discipline C.F. in a way that keeps his feelings as the main focus so that C.F. knows she is trying her best. The respondent mother also testified that if she needs help or is feeling overwhelmed, she has resources and a support system she could reach out to, which includes the maternal grandmother, the subject children’s maternal grandfather, C.F.’s father and the respondent mother’s godmother. The respondent mother credibly testified that she would abide by court orders, including a limited temporary order of protection requiring her to refrain from using corporal punishment on the subject children, as well as ACS supervision. The respondent mother stressed the importance of being able to show the Court that she is a good mother and is willing to do whatever it takes to do that, including continuing in services to work on her own trauma and to learn other disciplinary strategies so that she can be a better mother. Finally, when asked whether she would have done anything differently during the alleged incident, the respondent mother testified that she would change ever making C.F. feel unsafe or that he did not want to come home, that she feels both remorse and regret, and that she does not want to make him feel that way ever again.
The subject children’s maternal grandmother also testified at the hearing, although she was not entirely credible. She testified that the respondent mother generally disciplines C.F. by taking away his electronics and that she never saw her discipline him with a belt. She also testified that she was unaware of the bruise on C.F.’s shoulder, that she only became aware of it when ACS became involved and that she had no idea how it happened. She testified that she never told C.F. to lie about the incident but rather asked him whether he got the bruise by falling off his bed. She also testified that she would enforce a temporary order of protection issued against the respondent mother on behalf of C.F. to protect C.F.’s safety and comply with court orders. However, she gave conflicting testimony which undermined her credibility. Indeed, at one point during the hearing, she testified that she was never informed about the allegations against the respondent mother or why she was asked to come to C.F.’s school to wait for ACS but at a later point in the hearing, she testified that she was informed of the allegations against the respondent mother, specifically, that ACS believed the respondent mother had hit C.F. with a belt which caused the bruise on his shoulder.
The Legal Aid Social Worker credibly testified at the hearing as follows. The Legal Aid Social Worker spoke with C.F.’s school guidance counselor and asked how C.F. has been doing in school since his separation from the respondent mother. C.F.’s school guidance counselor told the Legal Aid Social Worker that C.F. is doing okay but misses the respondent mother and wants to be reunited with her. C.F.’s school social guidance counselor further told the Legal Aid Social Worker that in his opinion, it would be good for C.F. to be reunited with the respondent mother if preventive services were in place and that C.F. would benefit from therapy to allow him to release his feelings and explore more effective ways of coping with life’s frustrations.
As required by the Court of Appeals in Nicholson, this Court has balanced the risk of harm from removal of the subject children from their mother against any risk of harm if they are returned. In considering such a balance, this Court finds that the harm of removal of the subject children from the respondent mother outweighs the risk of harm to the subject children if they were to be returned to the respondent mother’s care. Although the respondent mother declined to testify about whether she did indeed hit C.F. with a belt as the petition alleges, the testimony at the hearing, as well as the documentary evidence, established that any risk that exists in returning the subject children to the respondent mother could be mitigated with court orders in place. Indeed, the evidence established that the respondent mother loves her children and adequately provides for their needs, that she has insight into what kinds of discipline are appropriate and inappropriate and that she wants to learn how to more appropriately cope with frustration she might feel when interacting with C.F. The evidence also established that the respondent mother is a survivor of domestic violence, which was perpetrated against her in the presence of the subject children, and she testified that she wants to engage in services to address her own trauma and how that affects her interactions with her children. The evidence established that the respondent mother would engage in preventive services as she has already engaged in a parenting course, which has provided her with knowledge and guidance on how to interact with C.F. going forward. The evidence further established that the respondent mother would abide by court orders requiring her to refrain from using any corporal punishment on the subject children. Indeed, the respondent mother has been fully compliant with the full stay away temporary order of protection issued against her since the case was filed on November 29, 2024. Finally, the Court notes that the release of the subject children to the respondent mother was strongly supported by the attorney for the children, precisely because the harm of removal of the subject children from their mother’s care outweighs the harm of any risk to the subject children if they were released to their mother’s care and that there are orders that can be put in place to mitigate any such risk.
Therefore, it is hereby
ORDERED that the subject children are released to the respondent mother under the following conditions and orders:
The respondent mother is not to use corporal punishment of any kind on the subject children;
The respondent mother is to abide by a usual terms limited order of protection on behalf of the subject children;
The respondent mother is to comply with preventive services;
The respondent mother is to comply with ACS supervision, including announced and unannounced visits;
The respondent mother is to sign all HIPAAs for herself and the subject children;
The respondent mother is to comply with all reasonable referrals for herself and the subject children, on notice to counsel;
The respondent mother is to make the subject children available for interviews and meetings with their attorney; and
ACS is to make a minimum of one visit to the case address per week.
This constitutes the decision and order of the court.
Dated: December 10, 2024
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