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."