CHILD CUSTODY AND THE PROBLEM CHILD

The problem child, the stubborn child - in NY, a parent may seek a PINS. A child under the age of 18 who does not attend school, or behaves in a way that is dangerous or out of control, or often disobeys his or her parents, guardians or other authorities, may be found to be a Person In Need of Supervision or "PINS". All PINS proceedings are heard in Family Court (in Massachusetts, where I also do this work, the proceeding is called a CRA, Child Requiring Assistance).

In this case, the problem child was handled in a post-divorce proceeding between the parents. IG v. v. IZ. V., 2022 NY Slip Op 50816 - NY: Supreme Court, Richmond 2022:

"Memorandum Decision

Statement of Facts

Plaintiff Ig.V. and Defendant Iz.V were married on July 31, 1992. There are two children of the marriage, to wit: M.V., born XXXX, 1996, and D.V., born XXXX, 2007. M.V. has been emancipated by reason of age. The Plaintiff commenced this action for divorce on or about September 30, 2011 and both parties asserted custody claims for their children.

Following trial of the issue of custody for the child, D.V., the Trial Court, Hon. Barbara I. Panepinto, Justice presiding, issued her decision after trial on November 25, 2019, which was incorporated into the Judgment of Divorce. Pursuant to the Trial Court's Decision and Judgment of Divorce issued on December 15, 2020, the Defendant was granted sole legal and residential custody of the child, D.V. Plaintiff was awarded parental access to the child, which he exercised.

In or about May, 2020, the child, D.V., began to reside with the Plaintiff and continues to reside with the Plaintiff. On September 18, 2022, Defendant filed Motion Sequence #023 (NY St Cts Filing [NYSCEF] Doc Nos. 222-226) seeking enforcement of the Judgment of Divorce in terms of custody and child support. On September 24, 2020, Hon. Barbara I. Panepinto appointed Harry Chiu, Esq. attorney for the child. (NY St Cts Filing [NYSCEF] Doc No. 227) On September 29, 2020, Plaintiff filed Cross Motion Sequence #024 (NY St Cts Filing [NYSCEF] Doc Nos. 228-231) seeking to modify the Judgment of Divorce in terms of custody. On September 25, 2020, Justice Panepinto issued an Order granting the Defendant parenting time with the child, D.V., on weekends pending the resolution of the motions. (NY St Cts Filing [NYSCEF] Doc No. 242).

Motion Sequence #023 was orally withdrawn on April 8, 2021 before Justice Panepinto. (see WebCivil Supreme — Motion Detail). Cross Motion #024 was dismissed in an oral decision by Justice Panepinto on April 8, 2021. (see id).

On April 9, 2021, Plaintiff brought Motion Sequence #025 by Order to Show Cause seeking to modify the Judgment of Divorce. (NY St Cts Filing [NYSCEF] Doc Nos. 243-251). Motion Squence #025 was dismissed in an oral decision by Justice Panepinto on June 11, 2021. (see WebCivil Supreme — Motion Detail).

On June 11, 2021, the Plaintiff filed Motion Sequence #026 by Order to Show Cause. The Plaintiff seeks a modification of the Judgment of Divorce, dated December 15, 2020, granting the Plaintiff physical and legal custody of the parties' child, to wit: D.V., born XXXX, 2007; and any further relief as this Court may deem just, proper, and equitable under the circumstances.

Defendant filed opposition to Motion Sequence #026, dated September 3, 2021, and filed via NYSCEF on February 25, 2022. On October 20, 2021, Plaintiff filed reply to Motion Sequence #026. Response from the Attorney for the Child (AFC) was filed to Motion Sequence #026 on October 30, 2021. Defendant filed opposition to Response from the AFC to Motion Sequence #026 on February 23, 2022.

On September 7, 2021, the Plaintiff filed Motion Sequence #027 by Order to Show Cause. The Plaintiff seeks a downward modification in the Plaintiff's child support obligation considering a substantial and unanticipated change in circumstances, to wit, the change in residence of the Child, D.V.

Defendant filed opposition to Motion Sequence #027, dated October 25, 2021, and filed via NYSCEF on February 25, 2022. Response from the AFC to Motion Sequence #027 was filed on February 25, 2022. Plaintiff filed reply to Motion Sequence #027 on March 9, 2022.

Generally, custody determinations should be made only after a full and plenary hearing and inquiry. "This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child." (see S.L. v J.R., 27 NY3d 558 [2016]).

A full and plenary hearing was held to determine custody of the Child, D.V., on Motion Sequence #026 and Motion Sequence #027 on May 19, 2022 and June 22, 2022. Plaintiff testified on his own behalf. Plaintiff did not introduce any documents into evidence. Defendant testified on her own behalf. Defendant introduced one document into evidence (Defendant's Exhibit A) and three documents for identification purposes only (Defendant's Exhibit B, Defendant's Exhibit C, and Defendant's Exhibit D).

On July 1, 2022, summations were filed via NYSCEF by Plaintiff, Defendant, and AFC.

This is a Decision and Order on Motion Sequence #026 and Motion Sequence #027.

Discussion

I. Determination of Physical and Legal Custody of the Child, to wit: D.V.

In Motion Sequence #026, the Plaintiff seeks (1.) a modification of the Judgment of Divorce, dated December 15, 2020, granting the Plaintiff physical and legal custody of the parties' child, to wit: D.V., born XXXX, 2007; and (2.) any other and further relief as this Court may deem just, proper, and equitable under the circumstances.

Custody orders are required to be entered "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." (Domestic Relations Law § 240 [1] [a]). In order "to modify an existing custody and parental access order, there must be a showing of a change in circumstances such that modification is necessary to ensure the continued best interests of the child." (see Matter of Cook v Sierra, 190 AD3d 732 [2d Dept 2021], citing Matter of Dokmeci v Herbert, 167 AD3d 877 [2d Dept 2018]).

There has been a clear and incontrovertible change in circumstances. The living arrangements of the Child, D.V., were already in flux during the period between the Court's November 25, 2019 decision after trial and the issuance of the Judgment of Divorce by Hon. Justice Barbara I. Panepinto on December 15, 2020. The Judgment of Divorce states, "pursuant to this Court's Decision dated November 25, 2019 the defendant shall have sole legal and residential custody of the child of the marriage: D.V., born XXXX, 2007[.]" The Judgment further states, "that the plaintiff is granted access time with the parties' child, D.V., as set forth in this Court's November 25, 2019 Decision After Trial[.]" (NY St Cts Filing [NYSCEF] Doc No. 255).

Both the Plaintiff and Defendant agree that at some point between the end of April 2020 and the beginning of May, the 15-year-old Child, D.V., had a disagreement with Defendant-Mother, called his Plaintiff-Father to come get him. Since that point, the Child has been living with the Plaintiff.

On May 19, 2022, Plaintiff testified that in April of 2020, there was a dispute between the Defendant and the Child and the Child began residing with the Defendant. (tr 8, lines 10-12 [May 19, 2022]).

On June 22, 2022, Defendant testified that the child, D.V., lived with her in New Jersey from 2014 until approximately May of 2020. (tr at 45, lines 19-23 [June 22, 2022]). Defendant continued to testify that she and the Child had an argument regarding a school issue. The child, D.V., called his father, apparently asked him to come pick him up, and D.V. never returned to live at the Defendant's residence. (tr at 46, lines 13-18 [June 22, 2022]).

Defendant also testified that for a period of time D.V. did not visit Defendant until 2021 Justice Panepinto ordered the Child to visit the Defendant every weekend. (tr 55, lines 10-14 [June 22, 2022]). Defendant further testified that D.V. visits more frequently now, and stays from Friday after school until Sunday night or Monday mornings. (tr 55, lines 1-5 [June 22, 2022]).

"In determining whether such a change exists, the court must determine whether the totality of the circumstances justifies modification[.]" (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]).

"There is `no prima facie right to the custody of the child in either parent[.]'" (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], quoting Domestic Relations Law § 70 [a]). "In adjudicating custody and visitation rights, the best interests of the child is the paramount factor to be considered[.]" (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 NY2d 167 [1982]).

While the Child does have parenting time with the Defendant-Mother spending weekends with her, the Child has been residing with the Plaintiff-Father full-time for more than two years. The circumstances of the Child's educational experience have changed as well. At the time of the Child's relocation to Staten Island, he was enrolled in school in New Jersey. He completed the 2019-2020 school year remotely due to the COVID-19 pandemic. In the two years since he has been attending school in Staten Island. (tr 9, lines 1-6 [May 19, 2022]).

High school age children typically struggle in adjusting. It is a time in which they experience physiological, mental, and social changes. It is a time for personal growth and unfortunately a time for experimentation and testing boundaries. To add to an already difficult time, the isolation, depression, and stresses caused by the COVID-19 pandemic have also greatly impacted this generation. The uprooting of a second-year high school student and requiring him to attend a new school, in another state that removes him from his social circle would create additional stress on a student that already has some difficulties.

The AFC states in his response to Motion Sequence #026, "The child himself has reported to both ACS [Administration for Child Services] and his own attorney that he prefers to reside with his father in Staten Island, NY." (NY St Cts Filing [NYSCEF] Doc No. 275).

The Court must consider these factors as part of its determination as to whether changing custody is in the best interests of the Child.

"In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent[.]" (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], citing Matter of Hutchinson v Johnson, 134 AD3d 1115 [2d Dept 2015]).

The Child, D.V., is a child that has some difficulties. Plaintiff and Defendant have testified that the Child has issues smoking, alcohol consumption, and marijuana use.

Plaintiff testified that in his search for a therapist to assist the Child in addressing some of his issues he stated, "I was looking especially for a person who specializes in substance abuse because D.V. smokes and, you know, he was intoxicated and positive for weed so I was kind of looking for specialist who can address those issues." (tr 21, lines 14-17 [May 19, 2022]). The Plaintiff understands that there is an issue with these areas of D.V.'s conduct and has been proactive in seeking assistance in remediating them.

Defendant testified on this issue, "I think that he [D.V.] has issue with smoking recreational marijuana when he's on Staten Island with his father and smoking vapes[.]" (tr 51, lines 12-14 [June 22, 2022]). Defendant further testified regarding an incident that occurred on June 9, 2021, "D.V. asked me to drop him off to the mall. On the way to the mall, which is about 15 minutes from my house, he asked me if he can pick up his friends on the way there. We came to pick [up] his friends and he asked me is he could stay with his friends and go to the mall from there, which I did not feel comfortable, but he begged me to." (tr 67, lines 11-16 [June 22, 2022]). Defendant's previous testimony regarding this incident from the June 22, 2022 transcript (tr 65, lines 14-23) is as follows:

Q. [W]hen was the next time you heard from D.V.?

A. Half hour later when I called and security picked up at the mall.

Q. Security picked up at the mall?

A. Yes.

Q. Why didn't D.V. pick up?

A. Because he was there intoxicated.

Q. With what, ma'am?

A. With Alcohol poison.

Plaintiff and Defendant recognize the smoking, alcohol, and marijuana use as an issue that their child has. While Plaintiff testified that he sought a therapist to assist his Child with these specific issues, Defendant's response, even after the Child's alcohol poisoning incident that required hospitalization, while the child was visiting the Defendant in New Jersey, was that these issues were a problem for the Child only when he was on Staten Island with Plaintiff-Father. This Court does not find that testimony to be credible.

Plaintiff and Defendant both recognized that the Child needed some assistance in the form of therapy. Plaintiff testified that the Child "was seeing a therapist during the time he was residing with his mom [Defendant]." (tr 10, lines 18-19 [May 19, 2022]). Plaintiff further testified, that the Child's diagnosis requires that "He's continuously receiving therapy. The specialist psychologist — psychiatrist prescribe him [sic] medication[.]" (tr 11, lines 13-16 [May 19, 2022]).

Plaintiff has proactively sought and engaged with various providers for D.V. Plaintiff has also participated in D.V.'s counseling sessions. (tr 40-41 [May 19, 2022]).

Defendant has also consulted with D.V.'s therapists and participated in at least one counseling session. (tr 50-51 [June 22, 2022]).

Plaintiff has testified to the difficulties the Child is having in school. He acknowledges that D.V., "has problems in school" and "[h]e's failing a few classes." (tr 53, lines 9-11 [May 19, 2022]). Plaintiff further testified that he has discussed D.V.'s educational issues with his teachers as well as guidance counselors and he is aware of and uses the Department of Education's Pupil Path app to track D.V.'s progress and attendance. (tr 53-54 [May 19, 2022]). Plaintiff also testified that D.V. has difficulty concentrating in school and he is attempting to remediate this issue through therapy. (tr 54-55 [May 19, 2022]).

Plaintiff further testified following discussions with D.V.'s counselor and/or therapist Plaintiff had to help improve D.V.'s mental state. It is "[h]is problems with [sic] psychological prevent him from functioning because he has hyperactivity and anxiety. It causes him to fail his classes and not perform in them well." (tr 58, lines 19-24 [May 19, 2022]). Plaintiff has also engaged the services of a tutor for the last two years to assist D.V. in his studies. Sessions vary from a few times a week to daily. (tr 61-62 [May 19, 2022]).

Plaintiff also acknowledged the Child's absenteeism from school. Plaintiff is attempting to remedy this in-part through a tracking app on the Child's phone.

Defendant testified as to D.V.'s school performance when he was living with her and attending school in New Jersey. "[E]verything pretty much except maybe one or two subjects was above 90. And again, when the Covid hit, he [D.V.] started slacking." (tr 49, lines 14-16 [June 22, 2022]).

Defendant further testified as to D.V.'s attendance record when he was living with her. "I would say 98 percent [attendance], except two percent when he was sick and couldn't go." (tr 49, lines 24-25 [June 22, 2022]).

Defendant testified, "I requested an access to Pupil Path, which I printed records last Friday." (tr 48, lines 12-13 [June 22, 2022]). Through this access Defendant is aware of the Child's performance and attendance issues.

Plaintiff raises questions regarding the Defendant acting in the best interests of the child and has testified that medication was prescribed for D.V. by a psychiatrist, "but his mom [Defendant] persuade [sic] him not to take it." (tr 11, lines 16-17 [May 19, 2022]). Plaintiff further testified that despite his best efforts the Child refused to ever take the prescribed medication that was purportedly used to treat "anxiety and hypertension, hyperactivity." (tr 19 [May 19, 2022]).

Defendant raises questions regarding the Defendant acting in the best interests of the child and testified that in 2020 on "July 23, 4:00 in the morning, D.V. called me in hysterics and told me to come and pick him up because his father left for the airport with his girlfriend to take a vacation and D.V. was left behind because his fever was 100.3 and because it was a Covid period, he wouldn't be able to pass the security." (tr 53, lines 1-5 [June 22, 2022]). The Child stayed with the Defendant for five days until the Plaintiff returned. Further testimony by the Defendant did reveal that D.V.'s 24-year-old brother was residing in the same home and that Michael is a nurse. (tr 66 [June 22, 2022]).

The court should also consider the child's wishes, weighed in light of their ages and maturity. (see id, 141 AD3d 721 [2d Dept 2016], citing Eschbach v Eschbach, 56 NY2d 167 [1982]). "[W]hile not necessarily determinative, the child's expressed preference is some indication of what is in his or her best interests and, in weighing that factor, a court must consider the age and maturity of the child as well as the potential for influence having been exerted on the child." (see Matter of Newton v McFarlane, 103 NYS3d 445 [2d Dept 2019], quoting Matter of Nevarez v Pina, 154 AD3d 854 [2d Dept 2017]). "[A] 15-year-old child's expressed preference is a relevant factor in determining the child's best interests in connection with issues of custody and relocation[.]" (see id).

D.V., born January 25, 2007, is more than 15 and a half years old. On October 31, 2021, the Child's attorney responded to Motion Sequence #026 on behalf of the child.

"The child himself has reported to both ACS and his own attorney that he prefers to reside with his father [Plaintiff] in Staten Island, NY. His relationship with his mother [Defendant] at times is strained, and at times very amiable. Sometimes when they argue, the child will not go to his mother's home in New Jersey. However, more often than not, during this litigation, he has had positive and regular visitation with his mother. Currently the child has been visiting with his mother every weekend. He is adjusting well to high school and is in the ROTC program. The child also reports to his attorney that he no longer consumes alcohol or smokes marijuana. He is currently in therapy and is learning more productive ways to occupy his time. D.V. has found his current therapist to be very helpful. He states that he no longer commiserates with those friends that use illicit substances, and he never wants to go through again what he did in June 2021." (NY St Cts Filing [NYSCEF] Doc No. 275).

While reviewing the testimony of both parties, this Court evaluated the above factors to determine the best interest of the child for the purposes of determining legal and residential custody of the Child, D.V.

Plaintiff seeks to modify the prior decision and Judgment of Divorce and requests that this court issue an order of physical and legal custody of the parties' child, D.V., to him, which would reflect the family's current reality. This relief is within the Court's discretion. (Domestic Relations Law § 240[1][a]). The relocation of the Child from the residence of the Defendant in New Jersey to the residence of the Plaintiff in Staten Island for more than two years is a change in circumstances to warrant the modification of the existing custody to ensure the best interests of the child. (see Matter of Cook v Sierra, 190 AD3d 732 [2d Dept 2021], citing Matter of Dokmeci v Herbert, 167 AD3d 877 [2d Dept 2018]).

Plaintiff has demonstrated that he has become the primary actor tending to the Child's medical needs in arranging therapy and counseling. The Child has been attending school in Staten Island since his relocation more than two years ago and, while recognizing educational issues the Plaintiff is informed of those issues and has been working with the child to remediate them. The Child also continues to express his desire to remain living with the Plaintiff on Staten Island. This relocation for more than two years by the Child from the Defendant to the Plaintiff has been a complete (and for the foreseeable future permanent) relocation. The change in the totality of the circumstances justify a modification in custody. (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 NY2d 167 [1982]).

High school age children often face challenges. In a post Covid world the difficulties for some children are magnified. Plaintiff is aware of the issues facing his Child, mental health and educational. He is also aware of the behavioral problems D.V. has had regarding absenteeism from school, alcohol, smoking, and marijuana. Plaintiff is not complacent. He is actively engaged in trying to help D.V. correct these issues with a tutor and mental health professionals.

The AFC observes in his response to Motion Sequence #026, "Based on multiple interviews with the child, the child's statements to the Administration of Children's Services (ACS) in the various court ordered investigations (COIs), and information provided by the parties, it appears that there is no imminent or potential risk to the child's and [sic] welfare while residing with his father [Plaintiff]." (NY St Cts Filing [NYSCEF] Doc No. 275).

The AFC further observes, the Child has "graduated from middle school and has moved on to high school. He is in counseling that addresses his mental health, including discussing teenage alcohol and drug use." (see id).

The Child, on his own volition, chose to relocate to the Plaintiff's home in 2020. The Child has continued to choose to remain living with the Plaintiff and maintain the status quo for the last two years. In that time neither parent, nor outside party has been able to change his position. The Child's expressed preference of remaining with the Plaintiff is some indication of what is in his best interests. (see id, 141 AD3d 721 [2d Dept 2016], citing Eschbach v Eschbach, 56 NY2d 167 [1982]). D.V., a 15-and-a-half-year-old, should have his preference considered as a relative factor in determining his best interests. see Matter of Newton v McFarlane, 103 NYS3d 445 [2d Dept 2019], quoting Matter of Nevarez v Pina, 154 AD3d 854 [2d Dept 2017]).

Based on the testimony by the Plaintiff and the Defendant, it appears that the Plaintiff-Father is better able to provide appropriate guidance to the Child. Plaintiff has demonstrated that he has the ability to ensure the child attends therapy and medication management. Plaintiff is aware of and appears to be attempting to remediate educational issues through a tutor. Plaintiff is financially stable and has met all the child's financial needs. Plaintiff as well as Defendant would better serve the bests interests of the Child by improving their communication between each other and sharing all information pertaining to the Child in the most expeditious manner possible. The Plaintiff demonstrates his support and fosters the relationship between the Child and the Defendant in that the Child visits the Defendant almost every weekend from Friday after school to at least Sunday. Accordingly, after consideration of the totality of these factors and the best interests of the child, D.V., legal and residential custody is GRANTED to the Plaintiff with the current parenting time schedule remaining in effect for the Defendant.

II. Downward Modification of Plaintiff's Child Support Obligation

In Motion Sequence #027, the Plaintiff seeks a downward modification of his child support obligation for the Child, D.V.

"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law §240(1-b)(c)(1), (2)." (see Cimons v Cimons, 53 AD3d 125 [2d Dept 2008].

Where an application is made for a downward modification of child support due to a change in circumstances, the change in circumstances must be substantial. (see Matter of Brunetti v. Brunetti, 22 AD3d 577 [2d Dept 2005]; Praeger v Praeger, 162 AD2d 671 [2d Dept 1990], citing Nordhauser v Nordhauser, 130 AD2d 561 [2d Dept 1987]; Matter of Allen v Bowen, 149 AD2d 828 [3d Dept 1989]).

The parties have created a new reality pertaining to custody of the Child that is no longer reflective of the circumstances anticipated by the Judgment of Divorce. For a period of more than two years the child has been residing with the Plaintiff and not the Defendant as ordered by the Judgment of Divorce. The Plaintiff had become the de facto custodian of the Child. Plaintiff testified on May 19, 2022 to the change in actual residency of the Child from Defendant to Plaintiff (tr 8, lines 10-12 [May 19, 2022]) and on June 22, 2022, the Defendant testified to this change in actual residence of the child (tr at 46, lines 13-18 [June 22, 2022]). As a consequence of this Decision, granting legal and residential custody to Plaintiff, child support must necessarily be addressed.

There is a clear and substantial change in circumstances in this matter and it is in the best interests of the child to downwardly modify the Plaintiff's child support obligation to reduce the child support obligation paid to the non-custodial parent/Defendant to zero dollars. There is no need for child support to be paid to the Defendant at the present time, as the Child no longer resides with the Defendant and the Defendant no longer has legal or residential custody^[1].

Accordingly, after consideration of the totality of these factors and the best interests of the child, D.V., the Plaintiff's request to downwardly modify the Plaintiff's child support obligation to the Defendant to zero dollars is GRANTED.

Decretal Paragraphs

ORDERED, that the relief sought by Ig.V. in Motion Sequence #026 is GRANTED.

ORDERED, that the relief sought by Ig.V. in Motion Sequence #027 is GRANTED.

The remainder of the parties' contentions, if any, are either without merit or need not be addressed given the conclusions reached above.

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

[1] There is no motion pending before this court by Plaintiff seeking Child Support from the Defendant-Mother. If and when the court receives such motion, the court will address the issue at that time."

AN ABUSE & NEGLECT CASE IN NY

Matter of Dariel R., Date filed: 2022-08-03, Court: Family Court, Bronx, Judge: Judge Liberty Aldrich:

"PROCEDURAL HISTORY On July 27, 2022, the Administration for Children’s Services (“ACS”) filed a neglect petition against the respondent mother, Ms. Alba R. All parties and their attorneys appeared on that day.1 ACS requested a removal of the child, Dariel. Ms. R. opposed the removal, and the Court began a hearing pursuant to §1027 of the Family Court Act. As required under 1027, the hearing was conducted day to day on July 27th, July 28th, July 29th, August 1st and August 2nd. The petition alleges that the child Dariel is derivatively neglected based on the allegations in pending Article 10 Petitions, docket numbers NA-XXXXX-XX/20. The petition further alleges that since the filing of the case, Ms. R. has not engaged in and benefitted from services sufficiently to eliminate the risk of harm to Dariel. Specifically, ACS alleged that Ms. R. has not shown insight into her role in the alleged incident with her daughter Amaia. On October 21, 2020, ACS filed an abuse petition, dockets NA-XXXXX-XX/20, against the Respondent Mother, Ms. R. and a person alleged to be legally responsible for the children, Mr. Robinson P..

The 2020 petition alleges that Ms. R. inflicted, or allowed to be inflicted, physical injury to the child Amaia. According to the petition, Ms. R. brought Amaia to the hospital on October 20, 2020 because Amaia was having a hard time breathing and fell when attempting to stand-up causing an abrasion on Amaia’s face. When Amaia was brought to the Children’s Hospital at Montefiore Medical Center she was in critical condition. Amaia had significant injuries, including: extensive soft tissue and internal injuries involving the abdomen and thorax; parietal soft tissue swelling on her head; elevated liver and pancreatic enzymes indicating traumatic injuries to the organs; bruising to her abdomen; visible swelling to the left hip region with a deep, hard contusion; extensive hyper-pigmented marks which could be consistent with reports of chronic eczema and related scratching; a ruptured spleen, blood in her perineum, blood in her chest cavity, abnormalities in her kidney; non-acute fractures to her ribs showing signs of healing.

The 2020 Petition further alleges that Ms. R. told hospital staff that she did not observe Amaia exhibiting any paid or odd behavior prior to the morning of October 20th. Ms. R. told staff that Amaia had fallen off the bed approximately 3-4 days prior.

Ms. R. informed staff that Amaia had been sad and quiet since Ms. R. separated from Amaia’s father. Ms. R. said that there have been no incidents of trauma aside from the fall off the bunk bed, and two weeks prior the child Caroline informed Ms. R. that the subject child Angel hit Amaia. Ms. R. informed staff that no one else lived in her home and Amaia sometimes attended daycare or was watched by her seventeen-year-old nephew.

The 2020 petition further alleges that Caroline attended an October 20, 2020, forensic interview in which she stated that Amaia had fallen off the bed but was fine afterwards. According to the petition Caroline said she did not see the fall but woke up because Amaia was crying. Caroline stated that Amaia has been having weird things happen to her since her dad left. The petition alleges that Caroline told CPS Young that she has only seen Ms. R. hit Amaia, but if anyone hurt Amaia it was probably the Respondent Robinson P. because he is mean to Amaia and scares her.2 According to the petition, Caroline told CPS Young that her mother woke her up on October 17, 2020 and informed her that Amaia had fallen off the bed.

The 2020 petition further outlines an October 20, 2020, forensic interview with the child Angel in which Angel stated that he was visiting his father over the weekend but when he returned home on Sunday Amaia was acting normal and eating.

According to the 2020 petition, NYPD officers stated that an October 20, 2020, surveillance video of the respondent’s home shows Ms. R. entering the home alone at approximately 8:04 AM and exiting at approximately 8:13 AM with Amaia and Mr. P.

The 2020 petition also alleges that during a physical exam of Caroline on October 21, 2020, Caroline was observed with an unexplained bruise to her face, as well as pain and discomfort to her chest/abdomen. When asked about the pain, Caroline stated that she also fell off the bed.

On October 21, 2020, Judge Keith Brown granted a remand of the subject children Caroline and Amaia and released the child Angel to his non-respondent father. On that date, the court issued an order that Ms. R. be permitted only agency supervised visits with the subject children. On November 9, 2020, the court released the subject child Amaia to her non-respondent father, Mr. V.-P.

On February 21, 2021, Ms. R. filed for a hearing pursuant to section 1028 of the Family Court Act. On May 6, 2021, Judge Brown denied Ms. R.’s request to have the child, Caroline, returned to her care.

On June 28, 2021, Judge Brown granted ACS the discretion to expand Ms. R.’s visits with the children Caroline and Angel to resource supervised and unsupervised.

On August 10, 2021, all counsel consented to Ms. R. having thirty minutes of unsupervised visits with Caroline under the conditions that (1) no one else could be present; (2) the agency must be notified where Ms. R. will bring Caroline; and (3) Ms. R. may not make any phone calls to anyone during the unsupervised time unless there was an emergency. The agency also had discretion to expand the length of the unsupervised visit.

On December 21, 2021, on consent of all counsel, the Court entered an order granting the mother unsupervised visits with the child Caroline, including Christmas day, with discretion for Angel to be included.

On March 15, 2022, the Court entered an order granting Ms. R. resource supervised visits with the child Amaia.

On April 19, 2022, all counsel consented to an order granting Ms. R. weekend overnight visits with the child Caroline.

A trial on the 2020 petition is still pending. The trial began on December 20, 2021, and continued on December 21, 2021 and June 21, 2022. At trial and at all prior points in the proceeding, ACS has not attempted to prove that Ms. R. committed the acts that caused Amaia’s injuries but rather that she allowed those injuries to be inflicted.

On December 20, 2021, Ms. R. was prepared to take a submission to neglect pursuant to section 1051(a) of the Family Court Act. On that day the attorney for the child Amaia was not prepared to consent to the submission. ACS called Ms. R. to testify. Ms. R.’s direct testimony occurred on December 20th and December 21st. She testified that she began a relationship with Mr. P. in August of 2020, and he moved into her home in September of 2020. Ms. R. testified that Mr. P. assisted with dropping off and picking up Amaia from daycare. Ms. R. testified that on the morning of October 20, 2020, she heard Amaia call from the room asking for milk. She did not enter the room, and the last time she saw Amaia was the prior evening. Ms. R. testified that after she arrived to work, she received a video call from Mr. P. Ms. R. stated that she remained on the video call the entire time it took her to leave work and arrive home. According to Ms. R.’s testimony, Mr. P. asked Ms. R. to return home as quickly as possible and sounded anxious. Ms. R. testified that Mr. P. told her that Amaia was crying, asked for milk, and when he went to give her some she fell. Ms. R. stated that when she arrived home, she began to change Amaia. Amaia’s eyes were rolling around, and she was not speaking. Ms. R. attempted to put Amaia in a seated position and she fell over to the side.

On December 21, 2021, Ms. R. was cross-examined by her attorney, and the attorney for Mr. P.. During cross-examination, Ms. R. testified that prior to and during her taxi ride to the hospital, Mr. P. told Ms. R. not to tell anyone they lived together because he didn’t want to get in trouble. Ms. R. testified that her nephew, Christian, moved in at some point after Mr. P., to help assist with caring for the children. According to Ms. R., Christian did not live with her full time. Ms. R. stated that during the approximate six weeks that Mr. P. lived in the home he cooked dinner for the children four or five times, and during the month of September he took the children to day care six to seven times.

On June 21, 2022, the 2020 petition was scheduled for trial and for a permanency hearing for the child Caroline. On that date, Ms. R.’s counsel once again indicated that Ms. R. agreed to a submission to neglect pursuant to section 1051(a) of the family court act. FCLS stated that ACS would be consenting to the neglect submission, after Ms. R.’s testimony at trial was complete. Later during the appearance FCLS sought to clarify that statement and indicated that ACS’s consent to a submission was not tied to Ms. R.’s testimony but believed waiting until ACS completed their case-in-chief would move the trial forward.

During the continuation of the trial on June 21, 2021, the attorney for the child Amaia completed her cross-examination of Ms. R., and attorney for the child Angel, started her cross-examination. During cross examination Ms. R. testified that on the morning of October 20, 2020, Mr. P. called her several times using WhatsApp’s video chat. Ms. R. testified that Mr. P. informed her Amaia did not look well, but she did not advise him to take her to the hospital. Ms. R. testified that she left work and went back to the case address. She changed Amaia’s clothing and did not notice bruising to Amaia. She testified that the only thing she saw was what she believed was eczema. According to her testimony, Ms. R. did not think of calling 911, but took a cab to the hospital with Amaia and Mr. P.. While in the cab, Mr. P. asked Ms. R. not to tell anyone that they lived together, and not to tell anyone that he was with Amaia.

On June 21, 2022, on consent of all counsel, Ms. R. was granted weekend overnights with Angel and liberal unsupervised visits with Caroline. ACS was also ordered to have a position regarding the release of the child Caroline by July 1, 2022. To date, ACS has failed to provide an updated position.

EVIDENCE PRESENTED

A hearing pursuant to section 1027 of the family court act was conducted on July 27th, July 28th, July 29th, August 1st and August 2nd.

The Court took Judicial Notice of Ms. R. prior testimony on December 20, 2021, December 21, 2021, and June 21, 2022, court dates.

Petitioner’s Exhibits:

Petitioner entered five exhibits.

Petitioner’s Exhibit 1 is the 2022 petition.

Petitioner’s Exhibit 2 is selected pages from the Montefiore medical records for the child Amaia. The records contain statements that Ms. R. made to hospital staff regarding Amaia falling off the top bunk sever days prior to admission. The Montefiore records further outline the injuries to Amaia and include several photos that show visible bruising all over Amaia’s body as well as scratches to her face and abdomen. The medical records indicate that Amaia has eczema.

Petitioner’s Exhibit 3 is a Child Safety Conference Summary dated July 26, 2022. The summary first details that that when Ms. R. gave birth, a safety alert #14 was activated because of three siblings that were removed from Ms. R. in 2020. The Summary states that during the conference, Ms. R. described her engagement in her service plan, her visitation, changes in her perspective since Amaia’s injuries, and the steps she has taken to prepare for Dariel. Ms. R. said that she was in a better place and that she was attending therapy, went for prenatal care, was attending her visits, and that she wanted a second chance. The summary states “In the context of safety planning for Dariel, Ms. R. did not raise the circumstances with Amaia; who the actual perpetrator was; delay in seeking medical care; or specifically what has changed that would ensure Dariel’s full safety, but when prompted, she stated that she regrets what happened to Amaia.” Ms. R. would not identify Dariel’s father during the conference. The listed safety concern was the 10/20/2020 incident regarding Amaia.3 The recommended safety plan was (1) a remand of the child Dariel; (2) continued individual counseling; (3) participate in intimate partner counseling either separately or integrated with individual counsel; (4) continue visitation.

Petitioner’s Exhibit 4 is the May 6, 2021, Decision and Order after hearing pursuant to Family Court Act section 1028 issued by Judge Brown. The decision outlines the basis for Judge Brown’s denial of Ms. R.’s request. In part, Judge Brown found Ms. R.’s testimony to be incredible and self-serving and that Ms. R. did not fully benefit from services or gain the necessary insight to allow the Court to safely release the child Caroline.4

Petitioner’s Exhibit 5 is three pages of ACS progress notes. The relevant notes are dated June 6, 2022, and June 8, 2022. The June 6, 2022, note discusses an appointment Caroline had with an allergist. The previous Saturday Caroline had a significant allergic reaction. Caroline stated that she ate a mango and Ms. R. said that Caroline used an oatmeal lotion that Ms. R. purchased for her. Ms. R. informed Caroline not to use the lotion anymore. The note also outlines how Ms. R. was happy that Amaia had new glasses, and she wanted a referral for Angel to see a therapist because of episodes of anxiety and anger. The note states that the visit with Ms. R. and the children went well. There were no safety concerns, and the children were observed to have no visible marks or bruises. CPS spoke with Ms. R. regarding Ms. R.’s pregnancy. Ms. R. informed ACS that she was told not to share her pregnancy until the other children were returned to her. Ms. R. also informed CPS that she is no longer with Dariel’s father who is now in the Dominican Republic and unaware of the pregnancy since they have no communication. The note entered on June 8, 2022, is a supervisory note that that outlines the next steps for CPS.

Respondent’s Exhibits:

Respondent entered one exhibit. Respondent’s exhibit A is a July 2, 2022, letter from licensed social worker, Maria Christina Bensi, from The Comprehensive Counseling. The letter states that Ms. R. has been receiving services at The Comprehensive Counseling since February 16, 2021. The letter states that the goals of the sessions include “to understand the severity of the case.” According to the letter, Ms. R. has a diagnosis of Adjustment Disorder with depressed mood and receives psychotherapy via telehealth. The psychotherapy utilizes Cognitive Behavioral Therapy and Dialectical Behavioral Therapy. The letter discusses Ms. R.’s most recent therapy session, her strengths, and follow-up treatment plan. Specifically, Ms. R.’s strengths included expressing her thoughts and feelings around family court, gratitude for weekend visitation, presentation of euthymic mood and normal range of affect, and goal-oriented thought process.

The Court also entered the August 2, 2022, Court Report on consent.

The attorney for the child did not enter any exhibits.

TESTIMONY

Petitioner called one witness, CPS Parker. CPS parker testified on direct and cross examination. CPS Parker testified that Ms. R. participated in a July 25, 2022, child safety conference. CPS Parker stated that during the conference Ms. R. was asked about whether she took any accountability for Amaia. According to CPS Parker stated that Ms. R. did not take accountability, but R. did say that she felt bad for what happened. CPS Parker also stated that Ms. R. discussed her desire to bring Dariel home, her services and how she was working through the issues with her therapist. On cross examination, CPS Parker testified that she has verified Ms. R.’s participation in therapy since 2021. CPS Parker also testified that Ms. R. informed ACS that father of Dariel lived in the Dominican Republic, and that Ms. R. was not asked directly whether Mr. P. was the baby’s father. CPS Parker stated that when Ms. R. was asked about her insight into the severity of the allegations related to Amaia, she agreed that Ms. R. was crying and that Ms. R. said that she felt badly and felt regret.

Respondent called one witness, Ms. R. On direct Ms. R. testified that she is aware of what Amaia went through and it has affected her greatly. She testified that she felt very guilty because she was the person that was supposed to protect Amaia, but instead she protected Mr. P. Ms. R. said that she has not been the best mother. Ms. R. indicated that therapy has helped her understand what happened, and that she will accept any services. Ms. R. also testified that that she cannot recall the last time that she saw Mr. P. but it was a long time ago and that he is not father of Dariel.

During cross-examination by FCLS, Ms. R. identified the injuries that Amaia sustained and stated that they occurred at different times. When Ms. R. was asked what she meant when she said that she didn’t protect Amaia, Ms. R. responded that she did not have a babysitter and she left the children with Mr. P.. She further stated that she only knew him for one month before he moved in. Ms. R. testified that she made the wrong decision and left her children with the wrong person. She said even though she didn’t know what was happening, she did not pay attention to things she should have paid attention to.

Ms. R. was then shown the pictures from Petitioner’s Exhibit 2. While being confronted with the pictures, Ms. R. stated that Amaia did scratch herself due to eczema but specified that she was not saying that Mr. P. did not cause a specific scratch, mark, or bruise. Rather, Ms. R. stated that she could not state whether the particular mark she was being shown was one caused by eczema or Mr. P.. At another point, she testified that she understood that Mr. P. caused the bruises. Ms. R. testified that the day she brought Amaia to the hospital she changed her diaper but did not see the bruises and did not examine her. She testified that she was nervous and focused on Amaia’s face. When shown different pictures of Amaia’s bruising, Ms. R. continued to testify that she did not see the bruises until the hospital showed her. Ms. R. testified that when she was changing Amaia prior to the hospital Ms. R. was in shock, and that there was not much light in the room. When shown the photograph of Amaya’s back, Ms. R. began to cry. She once again said that she did not see the marks and bruises prior to the hospital, but she saw the pain that Amaia was feeling. Ms. R. explained that when Mr. P. started to live with her, she initially did not see anything strange, but that Mr. R. would bother Angel. She stated that she did not think that the kids were unsafe around him, otherwise she would not have left the kids in his care. She said that prior to October 20, 2020, she never saw any bruises on Amaia. When asked about the father of the child Dariel, Ms. R. stated that Dariel does not have a father, the person is not in the child’s life, he lives in the Dominican Republic and is unaware that Dariel exists.

During the attorney for the child’s cross examination Ms. R. indicated that Dariel’s father wanted Ms. R. to have an abortion. She said that the last time she spoke to Dariel’s father was when she notified him of the pregnancy. She stated that if him, Mr. P., or any other man was in her life she would notify ACS. Ms. R. also said she is not currently in a relationship, but she agreed that she has previously prioritized relationships before the children. The example that she gave was when she lied and told everyone that Mr. P. was not living with her. Ms. R. said that she was somewhat afraid of Mr. P. in 2020 because he could become violent with her. She said that she would currently handle things differently. Part of what she has learned is that she needs to prioritize her children over her relationships and pay attention to any injuries that they may have. Ms. R. testified that through her domestic violence services she learned to ask for help, how to look for symptoms of abuse, and how to say no. She identified the symptoms of abuse as control, jealousy, isolation, and aggressiveness. Ms. R. then stated that Mr. P. displayed some of those symptoms including being jealous and controlling. Ms. R. stated that Mr. P. did not act aggressively in front of the children when she was there. Ms. R. testified that she does not believe a fall caused Amaia’s rib fractures, instead she believes that the injuries were caused by Mr. P..

On re-direct Ms. R. testified that she would follow any court orders put in place, including orders related to Mr. P..

IMMINENT RISK DETERMINATION

Legal Standard

To remand the child to the care and custody of ACS, under F.C.A. §1027(ii), the Court must find three things: 1) that there is imminent risk to the child or children and that no orders exist that could mitigate that risk; 2) that leaving the child in the parent’s care is contrary to their best interest, and 3) that the agency made reasonable efforts to prevent or eliminate the need for removal. Additionally, the Court must consider the impact on the children of the removal itself. The standard of imminent risk as articulated by the Court of Appeals in Nicholson v. Scoppetta is intentionally high. 3 NY3d 357, 367, 820 N.E.2d 840, 844 (2004). The Court made clear that the risk to the child must be more than speculative and that there must be a causal connection between the prospective or actual harm and the parents’ behavior. Id. The Court emphasized that courts and child protective agencies shall not be guided by the “safer course.” Nicholson also mandates that this Court must consider the harm of removal in its efforts to minimize the harms caused both by the parents and the agency to the child’s well-being. Id.

The focus of the inquiry is whether the evidence of neglect of one child indicates a fundamental defect in the respondent’s parental judgment, and there is no per se rule that a finding of neglect as to one child requires a derivative finding as to any siblings. In re Andrew B.L., 43 AD3d 1046 (2d Dept. 2007). The Court must consider the nature of the parental conduct alleged to be neglectful and whether the conditions that caused or allowed for that conduct still exist. In re Priscilla C., 121 AD2d 901 (1 Dept 1986). The case law on this matter is fact-specific and it is clear that in some cases, the answer is yes, while in others the answer is no. See, e.g. In re Ameena C., 83 AD3d 606 (1 Dept 2011); Matter of Padmine M, 84 AD3d 806 (2d Dept 2011). The Court must go beyond simply looking at whether a parent has participated in services. see Matter of Julissia B., 128 AD3d 690, 691 (finding that the child was still at imminent risk because despite the mother’s participation in services she was still prone to emotional outbursts, and was easily provoked and agitated); see also In re Xavier J., 47 AD3d 815 (2nd Dept 2008) (finding that the safer course was not to return the child in part because the mother failed to comprehend the seriousness of the father’s behavior). Courts have previously found that it was in a child’s best interest, or it was the “safer course” for a child to remain in care when a parent has not taken responsibility for prior actions. In re Umer K, 690 N.Y.S.2d 248 (1st Dept 1999)(finding it was in the best interest to extend foster care because “Ms. A. failed to accept responsibility for Zubair’s death, supporting the conclusion that she had a ‘faulty understanding of the duties of parenthood sufficient to infer an ongoing danger…”); In re Kimberly H., 673 N.Y.S.2d 96, 98 (1st Dept 1998)(finding that it was the safer course to remove the subject child of a derivative proceeding, whose siblings were still in foster care, from her parent’s home pending a full fact finding hearing); Matter of Tanya M., 616 N.Y.S.2d 45(1st Dept 1994)(finding it was in the child’s best interest to remain in foster care due to “appellants refusal or inability to acknowledge her previous behavior, and thus correct it…”). Insight and acknowledgement of past parental conduct that placed a child at imminent risk is essential in determining whether that risk still exists and what, if anything, can be ordered to mitigate any remaining risk. However, the belief that a removal is necessary absent a specific admission seems to rely on what is the safer course. Nicholson clearly stated that “safer course” was not the proper standard to use at a 1028. Nicholson, 3 NY3d at 380 (“[t]he term ‘safer course’ should not be used to mask a dearth of evidence or as a watered-down presumption.”).

Analysis

This case hinges on Ms. R.’s parental judgement and whether she has gained insight sufficient to mitigate the risk since the initial removal and the 1028 decision. There is no doubt that Ms, R. exercised parental judgement that fell below the required standard at the time of the initial removal of the older children in 2020. The injuries caused to Amaia are shocking and should have been noticed by her mother. Her decision to lie to protect her boyfriend clearly shows that her priorities put the children at risk.

Similarly, she had failed to meaningfully address that shortcoming in judgement at the time of her testimony in the 1028 hearing concerning Caroline. Judge Brown’s May 6, 2021, decision and order is clear. He specifically states that “Ms. R. has only superficially acknowledged that someone abused Amaia. She did not speculate as to whether she believed it was respondent P. or her nephew who perpetrated these heinous acts against her three-year-old daughter.”

This hearing requires the Court to decide whether she continues to have such a fundamental lack of insight into the requirements of parenting that it would put her newborn child at imminent risk that cannot be addressed through orders. Both FCLS and the attorney for the child argue that yes, she lacks the necessary insight to have Dariel safely in her care. They argue that Ms. R. has not fully acknowledged and address the circumstances surrounding removal, in part because of her statements regarding not knowing about the abuse that was occurring and failing to realize that a week prior to Amaia’s hospitalization she had several rib fractures. The ACS caseworker testified similarly: that Ms. R. did not take full accountability for the events leading up to Amaia’s injury and that she could not fully ensure Dariel’s safety.

ACS and the AFC correctly argue that there is still risk in allowing Dariel to return home with his mother. The Court agrees that there is risk. But under Nicholson, that is not the question the Court is required to answer. The question is whether that risk, at this point, is so great that it cannot be mitigated by putting orders in place to allow the child to return home.

At this time, the Court believes that the answer to that question is no; the risk at this time is not so great that it cannot be mitigated by putting orders in place. The Court does agree that Ms. R.’s testimony was at times self-serving and evasive. This is of serious concern to the Court. But Ms. R. was entirely credible, as the AFC agreed, in stating that Ms. R. knows that she failed to protect Amaia, that she understands that she was wrong, and that she would do things differently now.

ACS and the attorney for the child are essentially asking for Ms. R. to state definitively that she knew the child Amaia was being abused by Mr. P. prior to Amaia’s hospitalization. Not only that she should have known, but that she actually knew that Mr. P. was abusing Amaia and that she let it happen. Fundamentally, the Court does not agree that this level of admission is required to show that she will act to protect Dariel if necessary.

At this time, Ms. R. has indeed shown significant insight regarding her role in Amaia’s injuries and the removal of her children. Throughout Ms. R.’s testimony she became visibly upset, was at times crying, and seemed sincere and credible when discussing the injuries that Amaia sustained. Ms. R. stated repeatedly that she believes Mr. P. injured Amaia and that she should have paid attention to things she did not. She was likewise credible when she reiterated what the doctors told her about those injuries and that she agreed with it. Unlike the previous hearing that was conducted in 2021, Ms. R. did not testify that she believes her nephew Christian could be the cause of Amaia’s injuries. In contrast, Ms. R. stated that Christian had a good relationship with her children. At both this hearing and the fact-finding, she placed the blame for Amaia’s injuries on Mr. P.. Furthermore, Ms. R. admitted to lying for Mr. P. She stated that she prioritized Mr. P. over her children and has done the same thing in previous relationships. Ms. R. acknowledged that she failed as a parent because it was her job to protect her child and she didn’t. Ms. R. has a long history of being a victim of intimate partner violence and now recognizes that her choice in prioritizing partners, even violent ones, has impacted her ability to care for her children. Ms. R. has testified on several occasions that she was not aware of ongoing abuse of Amaia although she did know and should have acted based on Mr. P.’s treatment of Angel. Ms. R. knew Amaia was acting strange and failed to act. As she stated during her testimony, she knows now that she must pay more attention to anything going wrong.

A crucial difference between now and the time of her request for a 1028 for Caroline in February 2021 is that Ms. R., according to both the ACS caseworker and Respondent’s Exhibit A, has consistently been in therapy since that time. While she had previously failed to engage in counseling, she has now been participating in therapy for 18 months. She has demonstrated that this counseling has increased her insight into both her role and Mr. P.’s role in Amaia’s injuries. Is this evolution complete? No. The Court believes that she has shown sufficient but not complete progress in understanding her serious failure to act sooner. Ms. R. must remain in counseling and must continue to identify the ways in which she put her own comfort, not just her romantic partner’s, and needs above her child’s. This is critical work. But given the progress she has made, and her willingness to participate in any and all services ordered by the Court, her insight at this time is not so flawed as to prevent the return of Dariel with orders in place.

Ms. R. has demonstrated this evolution and her commitment to prioritizing her children over herself not only through engaging in mental health services but also by fully participating in the fact-finding hearing. Despite risking an abuse finding against herself, Ms. R. has testified against Mr. P. during the fact-finding proceeding now taking place. Ms. R. is testifying as ACS’s witness and is doing so despite risking an abuse finding, because at any point ACS can choose to withdraw their agreement to a submission.5 Ms. R. has been open and forthcoming with the court about the events leading up to the day in which Amaia was brought to the hospital.

Additionally, since the inception of the case, Ms. R.’s visitation with the children has continuously increased. At this time, she has been enjoying unsupervised weekend visits with Angel and Caroline and there have been no identified safety concerns. The agency, prior to this filing, was working towards a trial discharge of Caroline. Ms. R.’s supervised visits with Amaia have also positive according to the limited notes submitted. They reflect that Ms. R. engaged with her daughter, was appropriately involved in questions concerning her eyesight, and interacts positively with the staff. No one has brought to this Court’s attention that they believe Mr. P., or any other individual that has not been cleared, has been around the children. There have been no concerns regarding marks or bruises on the children after weekend visits. In fact, the attorneys for Angel and Caroline have consistently supported unsupervised contact. Each expansion of visitation has occurred on consent of ACS.

Finally, Ms. R. continues to actively participate in all services that have been requested of her. She testified that she would do whatever additional services that were asked of her by the Court or by ACS. Ms.

ACS has failed to establish that the risk to the child Dariel if he were to be released to Ms. R.’s care is such that it cannot be mitigated by putting orders in place.

Balance of Harms

In this case, the Respondent argues that the risk of harm is greater from removal than remaining in her mother’s care. At this time, the baby remains in the hospital where Ms. R. has been with him and is breastfeeding. The Court agrees that the balance of harms weighs toward denying ACS’s application for removal. Nicholson v. Scoppetta, 3 NY3d 357, 367, 820 N.E.2d 840, 844 (2004).

Services to Mitigate Risk

The testimony also supports a determination that Ms. R. will cooperate with services. She has been cooperative throughout the investigation, has regularly attended all visits, engaged with her children appropriately, and continued to participate in mental health services. Although the worker testified that she has not yet made any referrals to Ms. R., she acknowledged that Ms. R. has agreed to participate. Most critically, Ms. R. must not allow Mr. P. into the home, or near the children, and must allow any and all supervision to ensure that she is complying with this order.

ORDER: The Court releases the Subject Child to Ms. R. under ACS supervision and the following conditions:

1. That she engages in preventive services that will visit her home at least twice per month;

2. That she ensure Mr. P. does not have any contact with the children, and notify ACS if he attempts any contact.

3. That she submits the names of anyone spending time with the child to ACS for clearance;

4. That she refrains from all corporal punishment of any child;

5. That she continues to engage in mental health services, and that her therapist receives a copy of both Judge Brown’s 1028 decision and this decision;

6. That she signs all necessary HIPAA release forms;

7. And that she cooperates with ACS supervision, including reasonable referrals on notice to counsel and announced and unannounced home visits, at least twice per month on an alternating basis with preventive services.

Dated: August 3, 2022

Footnotes

1. The Attorney for the Child for Amaia was assigned to represent Dariel. The AFCs for the other two children on the 2020 petition did not participate in the hearing.

2. Caroline stated that Ms. R. would occasionally slap her on the wrist twice and neither child reported seeing Mr. P. injuring Amaia.

3. The date is incorrectly listed in the summary is 10/21/2022.

4. At the time of the decision Ms. R. had completed domestic violence services and parenting classes and was actively engaged in therapy. The domestic violence services consisted of four sessions.

5. Ms. R. is being called as ACS's witness. It is likely that at the end of the trial, ACS is going to ask the Court to credit her testimony."

DISSOLVING AN ARTICLE 17-A GUARDIANSHIP

Matter of M.M., Date filed: 2022-05-23, Court: Surrogate's Court, Richmond, Judge: Surrogate Matthew J. Titone, Case Number: File No. 2010-915/D:

"M.M., through his counsel, Disability Rights New York (“DRNY”) and ARMSTRONG & LAMBERTI, PLLC (“A&L”), petitioned this court on October 13, 2020 to dissolve his guardianship established by an Order of this Court dated February 18, 2011 pursuant to Surrogate’s Court Procedure Act 1759(2), to terminate the Supplemental Needs Trust (“SNT”) held for his benefit, to discharge Donna as guardian of the property and trustee of the SNT, direct Ms. Donna to account for her tenure as guardian and trustee, and to restore petitioner’s full legal capacity. Hattie Ragone, Esq. was thereafter appointed Guardian ad Litem for petitioner under SCPA 1755. This court then issued citation to Ms. Donna, Hattie Ragone, Esq., as GAL and New York City Human Resources Administration. The citation was served; however, Ms. Donna did not appear at the hearing or respond in writing to the citation.1

Pursuant to SCPA 1754 and 1759, an evidentiary hearing was held on July 21, 2021, and testimony was elicited from petitioner’s mentor and friend, Douglas, Hattie Ragone, Esq., the court appointed Guardian Ad Litem, and from the petitioner himself. DRNY moved for a Directed Verdict, and this court reserved decision. Petitioner’s counsel was allotted time to provide a written summation, and thereafter renewed their motion in such summation.

FINDINGS OF FACT

Petitioner was born on July 10, 1995. After the death of M.M.’s mother, on January 20, 2005, Michael Edward, surrendered his rights as father of the petitioner to Geraldine, petitioner’s paternal grandmother. On September 10, 2010, Geraldine petitioned to be appointed Guardian of the Person and Property of the petitioner pursuant to SCPA Article 17-A, listing Donna, M.M.’s paternal aunt as the standby guardian.

The Article 17-A petition was supported by the Affidavits of Petitioner’s physician and psychiatrist, Dr. Adrian Logush, MD, and Dr. Mini Verter, MD, respectively.

Dr. Verter, a licensed psychiatrist, in her affirmation dated July 22, 2010 affirmed that petitioner was diagnosed with Asperger’s Disorder. She further explained that petitioner had trouble with socialization, experienced mood swings and outbursts, exhibited aggressive behavior, and lacked the understanding of grey areas and nuances. Dr. Verter found petitioner had “poor insight to his difficulties.” At the time, petitioner was fourteen (14) years old.

Attached to Dr. Verter’s affidavit was the report of petitioner’s psychiatric interview on June 21, 2010, at the Children’s Community Mental Health Center. Petitioner was seen with his grandmother, with whom he was then residing. During the interview, it was noted that petitioner was not “hyperactive nor impulsive.” Petitioner exhibited no outbursts or tardive dyskinesia. He was not suicidal nor homicidal and was fully oriented. Petitioner was scheduled to move to his aunt’s home in Connecticut the following week and begin high school there.

Dr. Logush, a licensed neurologist, affirmed that petitioner was a 14-year-old young man with a history of “neglect, physical & sexual abuse” by his mother. According to Dr. Logush, M.M. was exposed to illicit drugs in utero and removed from his mother’s care. He found petitioner to be an “oppositional, argumentative, aloof boy with fleeting eye contact and stuttering who was socially immature & unrealistic.”

A hearing was held on the Article 17-A petition, and such petition was granted. On August 18, 2011, a petition to create a supplemental needs trust (“SNT”) was also granted. The initial SNT deposit was $300,000, the proceeds coming from a wrongful death lawsuit from the estate of petitioner’s grandfather.

In August of 2011, Ms. Geraldine petitioned to renounce as Article 17-A guardian. Ms. Donna was then appointed as petitioner’s guardian.

Petitioner testified at the evidentiary hearing, that Ms. Donna did not approve of his homosexuality. After less than six months as guardian, Ms. Donna enrolled petitioner in the Chamberlain School, a residential school in Massachusetts. Ms. Donna used approximately twothirds of petitioner’s SNT funds to pay for the school tuition. Petitioner resided at the Chamberlain School year-round until he graduated at the age of eighteen. Notably, petitioner and Ms. Donna have not communicated in any fashion since he first moved to the Chamberlain School.

On December 4, 2014, Ms. Donna sent a letter to this Court resigning as guardian. On December 23, 2014, this court permitted the resignation of the guardian of the person only. Ms. Donna remained petitioner’s guardian of the property and trustee of his SNT. She was awarded commissions for the years 2012, 2013, and 2014, yet not for the year 2016, since this court found the commissions were “not justified.”

In 2014, at the age of 19, M.M. left the Chamberlain School. He made friends and became involved in the LGBTQ community. M.M. worked in different restaurants and coffee shops. At one point, M.M. did marry, although his spouse is no longer in his life.2

Petitioner testified that he has continued to live on his own and manage his personal affairs since Ms. Donna was relieved as guardian. He obtained a driver’s license and started his own moving business. He designed business cards to advertise his services and utilized social media platforms and word of mouth to advertise. He leases trucks and hires laborers as needed. He travels independently across state lines for moving jobs, but primarily resides and works in Pennsylvania. Additionally, he manages his independent living such as securing health insurance, paying his cell phone, buying and preparing his own food, clothing, and other essentials. Petitioner also maintains his financial independence without relying on any form of public benefits, supportive assistance, or Medicaid. Petitioner has a network of adults that serve as mentors such as his friend and mentor Douglas, who testified at the July 21, 2021 hearing.

SCPA ARTICLE 17-A AND THE PROGRESSION OF THE DIAGNOSIS OF ASPERGER’S SYNDROME

SCPA Article 17-A was “[o]riginally enacted in 1969 [and] was limited to persons who were mentally retarded, and its implementation coincided with New York State’s policy of deinstitutionalizing thousands of individuals who had spent some or most of their lives in mental institutions. Since many of the newly discharged individuals had functional limitations that impaired their self-management, Article 17-A was an attempt to fill a void and provide a safety net for at least some of these individuals.”3

On January 1, 1990, the statute was repealed and replaced to afford the Surrogate’s Court jurisdiction over developmentally disabled and intellectually disabled adults. The article permitted jurisdiction over such persons provided their disability was certified through the age of 22. The Article 17-A petition could be filed and determined at any age, however.

Article 17-A was intended to streamline a complex guardianship process to allow parents to continue to care for their intellectually or developmentally disabled adults.4

Pursuant to SCPA 1759, the duration of the guardianship continues through the life of such person, “or until terminated by the court.” Once an individual is adjudged to need a guardianship, the court is not required at any point to review that decision. SCPA 1750-b, 1759.

Article 17-A appears to limit the court to a plenary guardianship. However, recent caselaw has interpreted the statute to allow certain tailoring of the relief. Some courts have permitted the guardian to make gifts on behalf of the ward (In re Guardianship of Joyce G.S., 30 Misc. 3d 765, 766 (Sur. 2010)); termination of the guardianship of the person while maintaining the guardianship of the property, (Matter of Robert C.B., 68 Misc. 3d 704 (N.Y. Sur. 2020)), while some have terminated the guardianship entirely (Matter of Dameris L., 38 Misc. 3d 570 (Surr. Ct. New York Co. 2012)); c.f. In re Guardianship of John J.H., 27 Misc. 3d 705, 706 (Sur. 2010).

While some modifications to the implementation of Article 17-A guardianships have occurred both in the legislature and in the Surrogate’s Courts, the diagnoses of the intended individuals have evolved, as have the treatments and therapies. Post-1990 attempts to further enhance and update the statutory scheme have failed, and the statute remains in the status of a society some thirty years old. About the time that M.M. was born.

For instance, M.M.’s diagnosis — Asperger’s Syndrome, sometimes referred to as Asperger’s Disorder, was initially defined by Hans Asperger, a Viennese pediatrician in the 1944.5

It was added to the American Psychiatrists Associations Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) in 1994 as a distinct, separate form of autism with language difficulties as the prevalent feature.6

In 2013, the DSM-5 removed the diagnoses of Autistic and Asperger’s Disorder and other pervasive developmental disorders and placed them under the umbrella of Autism Spectrum Disorder (“ASD”).7 This umbrella term recognized that no two diagnoses were identical, the disorder could present with one or many characteristics, and the functional capability of each person varied greatly.8 Nonetheless, the umbrella term was favored since the prevalent characteristic of all the disorders within was “impaired social interaction and communication, and restricted, repetitive behaviors and interests.”9

Field trials showed that the DSM-5 umbrella diagnosis of ASD did eliminate some 75 percent of those previously diagnosed of patients previously diagnosed with Asperger’s Syndrome.10 Thus, it was likely that an individual diagnosed with Asperger’s Syndrome in 1995, may not be diagnosed with ASD in 2014.

Thus, in the eighty years since Asperger’s Syndrome was named, eliminated and some portions placed under ASD, it has morphed into an understanding of a group of characteristics with relevant treatments and therapies to address its characteristics and is not a blanket diagnosis to which there is no recovery.

As such, although the statutorily intended duration of an Article 17-A guardianship is a lifetime, it is entirely possible that termination of such a guardianship could be warranted, based on the person, functional capacity or due to an improvement in their functional capacity.

It is axiomatic then that an Article 17-A guardianship must be dissolved when the “proponent fails to establish that the alleged incapacitated person has an intellectual or developmental disability that renders him uncapable of managing his person and/or property.” 11 There is no statutory framework which guides the dissolution of a guardianship as its intent is not to result in dissolution.

There is some guidance found in SCPA 1755, which permits modification of a guardianship order by employing an “interests of justice” standard. The court retains jurisdiction over the ward under SCPA 1758 to “adjudicate such steps and proceedings […] as may be deemed necessary or proper for the welfare” of the ward. This determination is at a minimum a “best interests” analysis. The term, “however, is an ‘amorphous term’, a determination of which is left to the discretion and judgment of the Surrogate.”12

“It is the official policy of New York State to promote and to facilitate the ‘independence, inclusion, individuality and productivity’ of persons with intellectual and developmental disabilities” pursuant to MHL §13.01.13 However, as noted supra, this policy has not translated into an enhanced version of the Article 17-A framework.

In Matter of Robert C. B., the court, when faced with a petition to terminate a guardianship of a ward diagnosed with Asperger’s Syndrome, explained that Article 17-A guardianship is largely a diagnosis-driven finding and declared that the proper focus “is one’s functional limitations and whether or not an individual will suffer harm as a result of these functional limitations.” 14 Employing such an analysis, the court found that the ward had a developmental disability that impaired his functional capacity to manage his property, yet not his daily personal decisions. Although the ward could understand his finances on a rudimentary level, he lacked the capacity to budget or manage his money. Thus, the guardianship of the property was maintained while the guardianship of the person was terminated.

In order for a guardianship to be dissolved or terminated, the factors which supported the creation of the guardianship should no longer exist. Thus, such analysis of a petition requires an analysis of the best interests of the ward, the least restrictive means to achieve the best interests, and the court’s jurisdiction if those earlier considerations fail.

The best interests analysis as applied in an Article 17-A hearing can support a finding at a given period in time that the ward lacks capacity to manage their personal and property affairs. The difficulty with such an analysis at a single moment in time is the assumption that an individual is unable to manage their diagnosis. Once a 17-A determination is made, typically at or around the age of eighteen, apart from petitions similar to that herein, there is no discernible reason for the Surrogate to re-examine the best interests standard.

The standard does not allow for maturity, supportive-decision making, efficacy of targeted treatments and therapies, among other factors. The standard restricts the individual to that particular age, and it is quite possible that those means are not the least restrictive at a later age. Essentially, what may be good today, may be totally inappropriate tomorrow.

Moreover, substantive due process is a right guaranteed under the 14th amendment of the United States Constitution requiring that the State shall not “deprive any person of life, liberty, or property, without due process of law.”15 Substantive due process is “understood to include a requirement that when the state interferes with an individual’s liberty on the basis of its police power, it must employ the least restrictive means available to achieve its objective of protecting the individual and the community.”16

Applying the least restrictive means is recognized by New York Courts as a constitutional imperative17 and as codified in N.Y. Mental Hygiene §81.01, the legal remedy of guardianship should be the last resort as it deprives the person of power and control over their life in violation of due process.18

The specific absence of the least restrictive language in the statute does not eliminate its constitutional imperative. Liberty is a fundamental right which this court can not infringe upon lightly.

In Matter of Robert C.B., it was noted that functional capacity was a necessary factor in determining the least restrictive means.19 Functional capacity of the individual taken into consideration with the individual’s available resources including their community, health care, power of attorney, advance directives, and the like, can assist in the least restrictive means determination.

Once functional capacity has been found in an individual, this court no longer has subject matter jurisdiction over the guardianship under SCPA §1758.20

CONCLUSION

Upon review of the papers submitted in support of this petition and the hearing testimony, the guardianship of the person and property must be dissolved, and the Supplemental Needs Trust terminated. Article 17-A Guardianship was awarded to M.M.’s grandmother when M.M. was 15 years old. He was a high school age student with a diagnosis of Asperger’s Syndrome, and the characteristics of a child whose parents failed to nurture him. He was noted to have mood swings, low frustration tolerance and outbursts.

M.M. was born during the advent of the DSM-IV identification of Asperger’s Syndrome. At that moment in time, it was the opinion of the Surrogate pursuant to the supporting medical documentation that it was in M.M’s best interests to have a guardian. He was a 15-year-old young man, who needed assistance navigating his teenage years, his identity, his diagnosis, and his ever-changing family environment. At that time and for a period thereafter, the guardianship may well have been the least restrictive means available to this court to assist M.M. Throughout M.M.’s life and even at present, the diagnosis has changed, as has the understanding of the interventions which would enable M.M. to manage his affairs.

For instance, in the Millennium Cohort Study (MCS), 19,517 adolescents born between 2000 and 2002 with and without autism, were assessed at ages 11 and 14 to examine their decision-making skills and the association with their psychological well-being.21 The study found “comparable quality of decision-making to that of their peers at both ages.”22 They found that effective therapies which consider this characteristic allowed the adolescent to transition into adulthood and promoted their mental health.23

Similarly in a small pilot study of college students with ASD, the researchers sought to examine how “traditional decision-making tools and tasks can be used to uncover strengths and weaknesses within a growing population of young adults with autism.”24 Of particular note, the researchers found that in the ASD cohort, complementing the strengths of ASD adults with the relevant tools to overcome their weaknesses allowed the adults on the spectrum to improve their decision-making and the relative outcome of their decisions.25 The researchers further identified that there was a “dearth” of decision-making research and its relation to an ASD adult’s employment or success.26 Essentially then, further research and the implementation of tailored intervention and therapeutic approaches to this diverse group of adults could lead to favorable outcomes in their decision-making capability.27

Although M.M. did not have the benefit of these specific therapies, he crafted them on his own. According to the testimony elicited at the hearing, he had the benefit of a supportive community to assist his decision-making. After his departure from the Chamberlain School, M.M. moved on into life on his own. He had no contact with his appointed guardian, whom the Surrogate had previously decreed he required, and had no choice but to find his way through life alone. M.M. may have made some mistakes, but still he managed (“his life exceptionally” judges’ comments).

The evidence further showed he made new friends, established a life in Pennsylvania and started his own business. He found support in people like Douglas, a mentor who supports him both personally and professionally. He decided he needed to work, first at small businesses, then at his own business, designing his own business cards, leasing trucks, and hiring laborers, and travels across state lines for moving jobs. He purchased health insurance, paid his own bills, and provides for his own essentials.

Basically, M.M. found and made his own way.

At this moment in time, unlike 2011, a guardianship is not in M.M.’s best interest and not the least restrictive means. Eleven years ago, M.M. was diagnosed with a syndrome, which, pursuant to the DSM, no longer exists today. Asperger’s Syndrome as a diagnosis in and of itself, is not conclusive evidence to support an Article 17-A guardianship. A statement proven by M.M.’s growth.

Eleven years ago, M.M. was dealing with changes in his support structure which could have caused the underlying symptoms he was experiencing, which M.M. has shown to manage today. Eleven years ago, M.M. was a teenager who needed a permanent guardian to help him, while now he makes his own personal and property decisions.

M.M. will make good and possibly not as good decisions throughout his life like every other adult. Those are his decisions to make, and he has demonstrated the capability to make them.

It is therefore, decreed, ordered, and adjudged that the guardianship of the person and property is dissolved, and the Supplemental Needs Trust terminated.

This decision shall constitute the Order of the Court.

Dated: May 23, 2022

Footnotes

1. Further, in response to the Court's request for an updated accounting, Donna submitted a handwritten note dated April 25, 2022, with her SNT accounting for 2021 requesting to be relieved as property guardian for petitioner.

2. The marriage occurred while M.M. was under a guardianship pursuant to SCPA Article 17-A, and as such, such transaction is voidable by M.M.. M.M. has not re-affirmed such marriage.

3. It was not until 2016, that the title of the article removed "Mentally Retarded" and replaced it with "Intellectually Disabled." Vincent J. Russo, Marvin Rachlin, N.Y. Elder Law Practice §9:1 [2021 ed.]

4. Margaret Valentine Turano, 2011 Practice Commentaries, McKinney's Cons Laws of NY, SCPA 1750. The article provided a cost-effective means for guardianship of this population that did not require the extended process under MHL Article 81.

5. Coincidentally, another Viennese physician, Kanner, also described the condition in 1943, however, Asperger was credited with the diagnosis. Barahona-Correa, JB, Filipe CN A Concise History of Asperger Syndrome: The Short Reign of a Troublesome Diagnosis. Front Psychol. 2016;6:2024. Published 2016 Jan 25 doi:10.3339/fpysg.2015.02024

6. Id.

7. Id.

8. Id.

9 Id.

10. Frazier T.W., Youngstrom E. A. Speer L. Embacher R., Law P., Constantino J. et. Al. (2012) Validation of Proposed DSM-5 Criteria for autism spectrum disorder. J. AM. Acad. Child Adolesc. Psychiatry 51 28-40.

11. In the Matter of the Guardianship of Dameris L., Pursuant to SCPA Article 17-A, 956 N.Y.S.2d 848 (Sur. 2012).

12. Matter of Joshua J.K., 71 Misc.3d 843, 846 (Surr. Ct Westchester Co. 2021); see also Matter of Robert C.B. at 716, 125 N.Y.S.3d 253 [citing Matter of Chaim A.K., 26 Misc. 3d 837, 845 [Sur. Ct., N.Y. County, 2009].

13. Matter of Robert C.B. at 709.

14. Id. At 258, 273.

15. U.S. Const. amend. XIV

16. In re Dameris L., 956 N.Y.S.2d 848 [Sur. NY 2012]; see also O'Connor v. Donaldson 422 U.S. 563 (1975).

17. Kesselbrenner v. Anonymous 33 N.Y.2d 161, 164 (1973)

18. Id. At 164.

19. See also Matter of Michelle M., supra.

20. In re Dameris L. at 854. The Dameris Court further held even if the Court had jurisdiction, the appointment of guardianship was no longer warranted, and the guardianship appointment was not the least restrictive alternative.

21. Hosozawa M, Mandy W, Cable N, Flouri E. The Role of Decision-Making in Psychological Wellbeing and Risky Behaviours in Autistic Adolescents Without ADHD: Longitudinal Evidence from the UK Millennium Cohort Study. J Autism Dev Disord. 2021 Sep;51(9):3212-3223. doi: 10.1007/s10803-020-04783-y. Epub 2020 Nov 16. PMID: 33196916; PMCID: PMC8349343.

22. Id.

23. Id.

24. Levin Irwin P., Gaeth Gary J., Foley-Nicpon Megan, Yegorova Vitaliya, Cederberg Charles, Yan Haoyang, Extending decision making competence to special populations: a pilot study of persons on the autism spectrum, Frontiers in Psychology Vol. 6, 2015, https://www.frontiersin.org/article/ 10.3389/fpsyg.2015.00539, doi 10.3389/fpsyg.2015.00539.

25. Id.

26. Id.

27. Id."