NEW YORK - KINSHIP DISQUALIFICATION ARGUMENT DISMISSED FOR LACK OF STANDING

BB EX REL ROSENTHAL v. HOCHUL, Dist. Court, ED New York 2023:

"DISCUSSION

I. Rule 12(b)(1) Motion

A. Article III Standing

"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. The concept of standing is part of this limitation." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (citation omitted). At the pleading stage, elements of Article III standing are not "mere pleading requirements but rather an indispensable part of the plaintiff's case," and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 56 (2d Cir. 2016) (citation omitted.) Specifically, a plaintiff must plead to have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Of course, "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. (citation omitted). And while the Court must accept the truth of a plaintiff's allegations at the motion to dismiss stage, the plaintiff still bears the burden of alleging facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue. See Calcano v. Swarovski North America Ltd., 36 F.4th 68, 75 (2d Cir. 2022) (citations omitted.)

Plaintiffs maintain that they suffered injuries resulting from the alleged violations of three constitutional rights arising under the Fourteenth Amendment: the right to family association and integrity; the right to be free from unreasonable and unnecessary intrusions into their emotional well-being; and the right to not be maintained in government custody longer than is necessary, including unreasonable duration of foster care. (Compl. ¶ 19.) In seeking to dismiss the complaint, Defendants contend that Plaintiffs fail to establish standing. (Defs.' Mem. Supp. Mot. to Dismiss ("Defs.' Mem.") at 8-9, ECF No. 25.) The Court agrees.

1. Constitutional Right to Family Association and Integrity

"Freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Smith v. Org. of Foster Families For Equal. & Reform, 431 U.S. 816, 842 (1977) (internal quotation marks omitted). Indeed, this Court has previously concluded that there are few rights more paramount than the right to the preservation of family integrity. See Alford v. City of New York, 413 F. Supp. 3d 99, 106 (E.D.N.Y. 2018) (finding that the rights for a child to remain in parental custody and to preserve family integrity are "paramount.")). Of particular relevance here, this right extends not only to a parent and a child, but also to foster parents and their foster children. See Rivera v. Marcus, 696 F.2d 1016, 1022, 1025 (2d Cir. 1982) (finding that a custodial relative and foster parent is entitled to due process protections "when the state decides to remove a dependent relative from the family environment."); see also Sykes v. New York State Office of Children and Family Services, No. 18-cv-8309, 2019 WL 4688608, at *11 (S.D.N.Y. Sept. 25, 2019) (stating that "it has been clear in this Circuit that kinship foster parents—that is, foster parents who are related to their foster children—are entitled to due process protection before foster children are removed from their custody.") Importantly, in this context, the liberty interest in the right to family association is implicated only where the government seeks to remove a child from their familial association and deprive the parent of their interest in the care, custody and management of the child. Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) ("For purposes of procedural due process analysis, parents have `a constitutionally protected liberty interest in the care, custody and management of their children,'" and "children have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily [family] association.") (internal quotation marks omitted).

Here, Defendants argue that B.B., T.R., Z.W., D.W., C.W.C., J.S., S.S., C.C., E.R., A.R. and M.R., ("Directly Placed Plaintiffs"), failed to plead an injury to their right to family association and integrity because each of these Plaintiffs is alleged to reside with a Kin Caregiver. That is, according to the complaint, B.B. resides with his maternal great grandparents. (Compl. ¶¶ 22-24.) T.R. resides with his maternal grandmother and uncle. (Id. ¶ 40.) Z.W. and D.W reside with their maternal uncle. (Id. ¶ 61-62.) C.W.C resides with her maternal grandmother. (Id. ¶ 73-75, 80.) J.S. and S.S. reside with their maternal grandmother. (Id. ¶ 94-95.) C.C. resides with her aunt and uncle. (Id. ¶ 112-13, 119.) And, E.R., A.R. and M.R., reside with their maternal grandmother. (Id. ¶ 121-22, 131.) As such, there can be no deprivation of the Kin Caregiver's interest in the care, custody and management of the children.

Incredibly, Plaintiffs fail altogether to address Defendants' argument.^[3] Instead, Plaintiffs assert in summary fashion:

"Here[,] Plaintiffs allege a concrete and actual injury in fact that is directly caused by Defendants' unconstitutional certification system that routinely denies children placement in familiar, safe[,] and loving foster or adoptive homes of relatives solely based on irrelevant aspects of their relatives' past. The denial of kin foster or adoptive home constitutes a concrete and particular injury."

(Pls.' Mem. L. in Opp'n to Defs.' Mot. Dismiss ("Pls.' Opp'n") at 6, ECF No. 28.) Of course, nothing in that assertion addresses how the right to familial association is implicated in the cases of the Directly Placed Plaintiffs who each reside with a relative. That said, the Directly Placed Plaintiffs do argue that they are at an ongoing risk of placement in stranger foster care. (Id.) And, while an injury-in-fact requires a plaintiff to show that he or she suffered an invasion of a legally protected interest that is concrete and particularized, Plaintiffs correctly note that a constitutional injury may arise by an unreasonable risk of harm. See Lacewell v. Office of Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021) ("An allegation of future injury may suffice if the threatened injury is `certainly impending,' or there is a `substantial risk' that the harm will occur") (citations omitted). Still, any injury must be "actual or imminent," not "conjectural or hypothetical." Lawyers' Committee for 9/11 Inquiry, Inc. v. Garland, 43 F.4th 276, 281 (2d Cir. 2022) ("To demonstrate Article III standing, a plaintiff must show that he suffered an `injury in fact'—`an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.'").

Here, the complaint is devoid of any allegation that might suggest there is an imminent risk that the Directly Placed Plaintiffs will be removed from their current kinship placement. That Plaintiffs have characterized their direct placement as "temporary" is insufficient to make the requisite showing. (Compl. ¶ 71.) For example, B.B. has resided with his maternal grandparents since 2018 — over five years — and there is no allegation that suggests that this custodial placement is poised to change. (Id. ¶¶ 22-37.)^[4] In March 2018, J.S. was removed from his parents care and was "immediately" placed in the care of his maternal grandmother, Ms. S. (Id. ¶ 94.) One month later, in April 2018, J.S.'s younger sister was born and she, too, was immediately placed in the care of Ms. S. (Id.) To date, J.S. and S.S. have remained in the care of Ms. S, no less than at least five years. (Id. ¶ 99.) Here again, Plaintiffs do not include any allegation suggesting that ACS might immediately remove either J.S. or S.S. from Ms. S's care. To the contrary, the allegations suggest that the expectation is for their placement with Ms. S to continue into the future. (Id. ¶¶ 100-101.) That is, it is alleged that Ms. S has the very real concern that she may not be able to retire if she must care for J.S. and S.S. without support or services from ACS. (Id. ¶100.) Z.W. and D.W. have been placed with the with their maternal uncle for over two years. (Id. ¶ 61.) There, the "children are thriving in their care," and ACS reported that "the children are `bonded and comfortable' with their uncle and his partner." (Id. ¶ 62, 66.) The Court could go on. In sum, nothing about Plaintiffs' allegations allow for the inference that any of the Directly Placed Plaintiffs is laboring under an actual or imminent threat of removal. Directly Placed Plaintiffs lack standing to sue for a violation of the right to family association and integrity.

Although the standing analysis for J.R., M.P., and C.P. differs from that of the Directly Placed Plaintiffs, the outcome is the same. Relying on a declaration from Cynthia Covington, the Acting Assistant Commissioner of Systems and Security Administration at ACS, and accompanying exhibits, Defendants argue that the Kin Caregivers for Plaintiffs M.P. and J.R. "voluntarily relinquish[ed]" custody over them, and that Plaintiff C.P. was never removed from his Kin Caregiver's home. (Defs.' Mem. at 9-10; Cynthia Covington Declaration ("Covington Decl."), ECF No. 26.) As such, according to Defendants, Plaintiffs have failed to adequately allege that any injury to their right to family association and integrity is fairly traceable to Defendants. In response, Plaintiffs argue that it is inappropriate for Defendants to present extrinsic material on a Rule 12(b)(1) motion "if [] defendant[s] [are] challenging the legal sufficiency of []plaintiffs' jurisdictional allegations. (Pls.' Opp'n at 3-4.) While this may be true, it does not preclude the Court from considering extrinsic evidence here. As Defendants correctly note, a defendant is permitted to rely on evidence outside of the pleadings, where, as here, they challenge the factual basis for the Court's jurisdiction. See Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 57 (2d Cir. 2016) ("[A] defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the Pleading.") In view of the evidence adduced by Defendants, it is clear that Plaintiffs have failed to allege an injury as to J.R., M.P., and C.P. that is fairly traceable to Defendants.

Traceability, in the context of a standing analysis, requires a demonstration of a "causal connection between the injury and the conduct complained of." See Lujan, 504 U.S. at 560; Put differently, the alleged injury must be "fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court." See Lujan, 504 U.S. at 560 (citations omitted); see also Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016) (holding that traceability "focuses on whether the asserted injury could have been a consequence of the defendant rather than being attributable to the `independent' acts of some other person not before the court.") A plaintiff cannot establish traceability if a plaintiff's injury stems from a voluntary decision that was not fairly traceable to a defendant's conduct. See, e.g., Holocombe v. Ingredients Solutions, Inc., 797 F. App'x 630, 633 (2d Cir. 2020) (summary order) (finding that plaintiff's injury stemmed from a voluntary decision and thus was not fairly traceable to defendants' alleged misconduct). Such is the case here.

In a very carefully worded paragraph, Plaintiff M.P. alleges that:

"In the fall of 2020, Ms. M. began to really struggle to continue to care for M.P. Ms. M. was unable to work due to an injury, and without the Childcare Supports and Services that come with a foster care placement, some of M.P.'s behavioral needs became difficult to manage. ACS removed M.P. from Ms. M's home [i]n December 2020 and placed him back at the RTC where he had felt unsafe."

(Compl. ¶ 58.) As to J.R., Plaintiffs allege that he was placed with his paternal grandmother, Ms. V. (Id. ¶ 86.) According to the complaint, that placement was going so "smoothly and well" that ACS "started the process of withdrawing their petition to terminate J.R.'s father's parental rights because ACS was working toward KinGAP^[5] with Ms. V. as J.R.'s permanency plan." (Id. ¶ 87.) It was only upon Ms. V.'s denial of foster care certification that it is alleged that ACS "removed" J.R. from Ms. V.'s home. (Id. ¶¶ 86, 88.) Nonetheless, the complaint is deafeningly silent as to how or why J.R. and M.P. were removed.

Plaintiff M.P.'s Kin Caregiver also voluntarily relinquished custody of M.P., once in 2018 and then again in 2020. (Def. Mem. at 10.) In December 2018, Plaintiff M.P. was placed with his Kin Caregiver, Ms. M. (Compl. ¶ 51, Covington Decl. ¶¶ 20, 22, Ex. 6 at 12, ECF No. 32-6.) According to ACS records, Ms. M decided that she could not care for him because she could not manage M.P.'s behavioral issues. (Ex. 6 at 13.) M.P. was placed at the Children's Village in May 2019 and then returned to Ms. M's home at an unspecified date. (Compl. ¶ 52.) ACS records indicate that in December 2020, Ms. M again requested that M.P. be removed from her home because he was breaking her furniture. (Covington Decl., Ex. 8 at 78-79, 96-97, ECF No. 32-8.) It was at that point that ACS removed M.P. from Ms. M.'s care. (Compl. ¶ 58.)

However, as Ms. Covington's declaration makes clear, J.R.'s grandparents voluntarily returned J.R. to ACS's care. J.R. was placed with his grandmother in November 2017. (Covington Decl., Ex. 2 at 3, ECF No. 32-2.) As ACS records reflect, in February 2018, J.R.'s grandmother returned J.R. to ACS because she was unable to care for him due to health issues. (Id.) In December 2019, J.R. was again placed on an extended visit with his paternal grandparents. (Compl. ¶ 86; Ex. 2 at 10.) But, two months later, in February 2020, J.R.'s paternal grandparents decided that J.R. should be removed from their home because they could not financially provide for him. (Compl. ¶ 88; Ex. 2 at 10, 11; Ex. 3 at 4, 12, ECF No. 32-3.)

It is inescapable that both M.P. and J.R. were voluntarily relinquished from their Kin Caregivers' care. Indeed, in response to Defendants' voluntary relinquishment argument, Plaintiffs cite to paragraphs 52, 58, 86, and 88 of the complaint to note that "[e]ach Kin caregiver applied to be a foster parent for their relative child and only after they were denied certification did they determine they were unable to care for that child." (Pl.'s Opp'n at 6 n.5.) In other words, Plaintiffs seem to agree.

Allegations with respect to Plaintiff C.P. fare no better. According to the complaint, C.P. was removed from his mother in October 2020. (Compl. ¶ 103.) Plaintiffs do not challenge that removal. C.P. was subsequently placed at a shelter and then in a foster home. (Id. ¶¶ 103, 105.) Conspicuously absent is any allegation that C.P. ever resided with a Kin Caregiver and was removed at the direction of ACS. On that basis alone, Plaintiffs fail to allege an injury to C.P.'s right to familial integrity. Admittedly, Plaintiffs allege that C.P.'s uncle, Mr. P., offered to become foster parent but that ACS refused to certify Mr. P. because of a prior misdemeanor conviction. (Id. ¶¶ 103, 106.) As a result, according to the complaint, C.P is in a stranger foster home. (Id. ¶ 103.) As with M.P. and J.R., however, there are no allegations that permit the Court to infer that C.P's placement in stranger foster care versus (presumably) with his uncle can be attributed to conduct by Defendants.

Plaintiffs M.P, J.R., and C.P. fail to plead an injury to their right to family association and integrity.

2. Constitutional Right to Be Free from Harm

As courts in this Circuit have recognized, "under certain circumstances, the federal Constitution imposes upon the government an affirmative duty to provide services and care to individuals in state custody." Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 674 (S.D.N.Y. 1996). More to the point, under the Fourteenth Amendment, the Government must provide to those individuals in its custody "reasonably safe conditions of confinement and general freedom from undue bodily restraint." Id. This right to be "free from harm" reaches the right to "essentials of care such as adequate food, shelter, clothing and medical attention," and appropriate conditions and duration of foster care. Id. at 675. This right also includes the right to be free from psychological, emotional and developmental harm. Id. For example, one court reasoned: "A child's physical and emotional wellbeing are equally important. Children are by their nature in a developmental phase of their lives and their exposure to traumatic experiences, can have an indelible effect upon their emotional and psychological development and cause more lasting damage than many strictly physical injuries." B.H. v. Johnson, 715 F. Supp. 1387, 1395 (N.D. Ill. 1989). The Court sees no basis for disagreeing with this thinking. Similarly, the Court is in agreement with those courts that have found that the right to be free from harm includes the right to an appropriate duration of foster care. See, e.g., Marisol, 929 F. Supp. at 676 (stating that "the right to be free from harm encompasses the right alleged by plaintiffs to appropriate conditions and duration of foster care"). In other words, the Court joins its sister courts in taking a broad view of the concept of harm attendant to the right to be free from unreasonable intrusions into a child's emotional harm. But, the fact that the Court agrees with this broad view does not overcome the deficiencies raised by Defendants with respect to standing.

It is axiomatic that to find an injury to a right that relates to the conditions of an individual's confinement requires, as a condition precedent, that the individual actually be in custody. For that reason, perhaps, Defendants argue that none of the Directly Placed Plaintiffs have standing to sue for a violation of their right to be free from harm, because none of the Directly Placed Plaintiffs are in government custody. (Defs.' Mem. at 8.) Tellingly, Plaintiffs fail to direct the Court to any allegation that suggests the contrary. This failure is fatal to the Directly Placed Plaintiffs' claim that they have standing to sue for an injury to their right to be free from harm. Of course, given that M.P., J.R., and C.P. are alleged to be in state custody, their custodial status does not preclude a finding that they have standing to sue. Nonetheless, their claim of standing to sue for a violation of the right to be "free from harm" is otherwise infirmed.

Children in state custody have a right to conditions of confinement that bear a reasonable relationship to the purpose of their custody. Marisol, 929 F. Supp. at 676 ("Individuals in state custody, however, do have a constitutional right to conditions of confinement which bear a reasonable relationship to the purpose of their custody) (citing Jackson v. Indiana, 406 U.S. 715, 738 (1972).) And, as alleged by Plaintiffs, OCFS has stated that the "overarching goal for each child in [foster] care is to identify safe and suitable permanency options . . . within the context of safety and the child's best interests." (Compl. ¶ 6.) That said, as a matter of law, the right to be free from harm does not require that the government prove the least restrictive, optimal placement, or optimal level of treatment. Marisol, 929 F. Supp. at 675 (collecting cases) ("Courts generally agree that the Fourteenth Amendment does not require the state to provide children in foster care with an optimal level of care or treatment" and thus "to the extent that custodial plaintiffs allege a substantive due process right to a least restrictive, optimal placement, their claims must be dismissed.") Therefore, Plaintiffs must complain of more. Here, they do not.

With respect to "stranger foster care," Plaintiffs allege generally that "social science data confirms that children placed with Kin Caregivers generally fare better than children placed with strangers." (Compl. ¶ 8.) Plaintiffs allege that children in stranger foster care "have poorer school performance and are more susceptible to homelessness, arrest, chemical dependency, and mental and physical illness than children who remain with their families." (Id. ¶ 15.) In addition, Plaintiffs allege that the children in stranger foster care "experience approximately three times as many placement moves as children in kinship placements," and children in "kinship foster placements are two times more likely than those in stranger foster homes to report positive emotional health." (Id. ¶¶ 148, 152.)

As to M.P. on this point, Plaintiffs allege only that M.P. remains at the Children's Village, a residential treatment center ("RTC"), far away from his home community. (Id. ¶¶ 52, 59.) Plaintiffs allege that placement in institutional care allegedly "makes M.P. more susceptible to poor school performance, homelessness, arrest, and aging out of ACS custody without a permanent home." (Id. ¶ 59.) As to J.R., Plaintiffs allege that because he has been twice moved to a foster home, he lacks stability and these moves have been disruptive and unsettling. (Id. ¶ 92.) Moreover, J.R. will allegedly transfer to a new school in the middle of 5th grade and this will disrupt the provision of his IEP services. (Id.) With respect to C.P., after he was placed in a foster home, he "regressed significantly," such as having difficulty sleeping. (Id. ¶ 110.)

The Court is not unsympathetic to these concerns. Nor does the Court suggest that these concerns are somehow invalid. However, they nonetheless suggest that the gravamen of Plaintiffs' complaint is that the Government has not provided a least restrictive, optimal placement, which does not constitute an injury to their right to be free from harm.

Indeed, one need only compare the allegations in this complaint to those in Marisol, 929 F. Supp. at 670-71, which was cited by Defendants for the proposition that J.R., C.P. and M.P. fail to allege a cognizable injury to the right to be free from unreasonable intrusions into their emotional well-being because that injury concerns the conditions of foster care, not just the fact that one is in foster care. (Defs.' Mem. at 10.) There, the plaintiffs are children who all suffered severe abuse and neglect. See Marisol, 929 F. Supp. at 669-71. For example, one plaintiff entered the foster care system after his mother died from HIV. Id. at 670. The child was diagnosed with an AIDS-related illness, and was transferred from a diagnostic facility to a group home that lacked the medical staff needed to monitor his condition. (Id.) The Child Welfare Administration of the City of New York ("CWA") neglected to inform the agency of his medical condition. Id. This plaintiff was then placed in another group home, and CWA again failed to alert the agency of the child's condition. (Id.) When the agency notified CWA that the child needed hospice care, CWA directed staff to take him to the hospital. Id. He later died at the age of nineteen. Id. Another plaintiff was placed at a hospital, diagnostic center and a residential treatment center. Id. at 671. The child was then approved to be placed with a minister who sexually abused him. Id. The child ran away. Id. The child was then returned to the residential treatment center and attempted suicide twice and ran away. Id. A third plaintiff spent his entire life in foster care, and exhibited violent behavior, including attempting to rape of a nine-year old girl, stabbing other children with pencils and lighting several fires. Id. at 672. He was then committed to a hospital as a "sexual predator," was placed in a group home and later ran away. Id. CWA failed to locate him. Id. Against these factual allegations, the district court found that because the custodial plaintiffs adequately alleged that they were deprived of "even adequate or appropriate conditions of foster care including certain basic necessities," and may pursue their substantive due process claims based upon alleged violations of their right to be free from harm. Marisol, 929 F. Supp. at 676. Here, Plaintiffs allegations do not allege the same concerns of abuse, neglect and trauma as reflected in the allegations of plaintiffs in Marisol.

Plaintiffs' claim of an injury to the duration and conditions of foster care is a curious one with respect to Plaintiffs M.P., J.R. and C.P. These Plaintiffs are not complaining that they should not remain in foster care. Rather, they argue that they should remain in foster care i.e. in state custody, but with a specific relative. However, the Fourteenth Amendment does not require the state to provide children in foster care with an optimal level of care, but the conditions of confinement must bear a reasonable relationship to the purpose of the custody. Marisol, 929 F. Supp. at 676. Although Plaintiffs may believe that the optimal level of care is with a specific relative, they are not entitled to this care as the state is not required to provide as much. Plaintiffs fail to allege how their placement in foster care in any way hinders the purpose of their custody, which in part concerns placement in a healthy family environment.

B. Prudential Standing

Prudential standing is a doctrine developed by the Supreme Court under which courts may decline to adjudicate certain categories of cases where Article III's constitutional minimum has been met. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). Where a case presents questions of both constitutional and prudential standing, "we may assume Article III standing and address `the alternative threshold question' of whether a party has prudential standing." Phoenix Light SF DAC v. U.S. Bank Nat'l Assoc., 2021 WL 4515256, at *2 (2d Cir. Oct. 4, 2021) (summary order). The prudential standing rule "bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves." McCarty v. The Bank of New York Mellon, 669 F. App'x 6, 7 (2d Cir. 2016) (citation omitted). To satisfy the prudential standing requirement, a plaintiff must assert "his [or her] own legal rights and interests[] and cannot rest his claim to relief on the legal rights or interests of third parties." Id. (citation omitted). There is, however, an exception to third-party standing, which applies only where a plaintiff can demonstrate "(1) a close relationship to the injured party and (2) a barrier to the injured party's ability to assert its own interests." W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 109 (2d Cir. 2008).

Here, Defendants argue that Plaintiffs do not qualify for prudential standing because they seek to assert the rights of the Kin Caregivers to be certified or approved as foster parents. (Defs.' Mem. at 14.) Defendants additionally argue that Plaintiffs do not meet the exception to the third-party standing rule. (Id.) Plaintiffs respond to Defendants' prudential standing argument in a two-sentence footnote, arguing that the Plaintiff children raise claims based upon their own rights and injuries they have suffered, not those of the Kin Caregivers. (Pls.' Opp'n at 4.)

However, as Defendants correctly point out, according to 18 N.Y.C.R.R. § 443.2 and 18 N.Y.C.R.R. § 427.6(b), Kin Caregivers, not the Plaintiff children, have the right to apply for approval as a kinship foster parent and if approved, to receive FCMP benefits. (Def. Mem. at 14.) Plaintiffs' claims directly challenge Defendants' alleged unconstitutional disqualification systems and policies, which target the criminal history and backgrounds of Kin Caregivers. Therefore, Plaintiffs' complaint arguably asserts the legal rights and interests on behalf of the Kin Caregivers.

With that said, Plaintiffs have not established that they qualify for the exception to the prudential standing rule. There is no question that the Kin Caregivers and Plaintiffs have a close relationship through their familial ties. However, as Defendants argue, Plaintiffs have not demonstrated that there is a hindrance or barrier for the Kin Caregivers to assert their rights in Court and to protect their own interests by challenging Defendants' policies as applied to them. (Defs.' Mem. at 14-15.) Indeed, Defendants identify examples of cases where relatives, like the Kin Caregivers in this case, have raised challenges to the same or similar disqualification policies. (Id. at 15.) Plaintiffs do not offer one. Plaintiffs have not established that there is prudential standing in this case.^[6]

* * *

The truth of the matter is that the disqualification systems Plaintiffs complain of are a workaround that does not address any concerns regarding the safety of the children, but only to deprive them of the money, making children worse off. Notwithstanding the Court's concern with the viability of the disqualification systems at issue here, Plaintiffs in this case have not established standing.

CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss is GRANTED for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and the complaint is dismissed in its entirety.^[7]

SO ORDERED.

[1] The following facts taken from the complaint (Compl. ECF No. 1) are assumed to be true for the purpose of deciding the instant motion.

[2] Kin is defined under state law as "any individual related to a half-sibling of the child through blood, marriage or adoption, and where such person is also the prospective or appointed relative guardian of such half-sibling or an adult with a pre-existing positive relationship with the child including, but not limited to, a step-parent, godparent, neighbor or family friend." (Compl. ¶ 156 n.4.)

[3] Because Plaintiffs did not address this argument in their opposition, this argument can be deemed abandoned. See, e.g., Spinnato v. Unity of Omaha Life Ins. Co., 322 F. Supp. 3d 377, 405 (E.D.N.Y. 2018) ("A district court `may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.'") (citations omitted).

[4] Plaintiff B.B. alleges that after ACS denied his maternal grandparents foster parent certification in April 2020, ACS also informed the family that B.B. would be removed from the home in June 2020. (Compl. ¶ 27.) However, there are no allegations that ACS ever removed B.B. at that time or at any point thereafter.

[5] Under KinGAP, if a Kin Caregiver has been a child's foster parent for at least six months, a Kin Caregiver will be given the legal responsibility to care, control and supervise a child, and can receive a subsidy. (Compl. ¶ 155.)

[6] Even if Plaintiffs had standing to sue, their claims against Governor Hochul would warrant dismissal. "In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act[.]" Ex parte Young, 209 U.S. 123, 157 (1908). A state governor does not meet this exception solely "based upon the theory that [s]he, as the executive of the state, was, in a general sense, charged with the execution of all its laws." Id. Plaintiffs simply allege that "the Governor is required to execute laws and, therefore, is responsible for ensuring that all New York executive departments and agencies, including OCFS and the local departments of social services that OCFS supervises, such as ACS, comply with all applicable federal and state laws." (Compl. ¶ 133; Defs.' Mem. at 17.) Such bare allegations are insufficient to establish that Governor Hochul had any connection or role in administering the complained of disqualification systems or foster/adoptive parent assessments. Therefore, the claims against Governor Hochul are dismissed. See, e.g., Wang v. Pataki, 164 F. Supp. 2d 406, 410 (E.D.N.Y. 2001) (dismissing plaintiff's claims against the governor because "the general executive duty of the [g]overnor does not provide a basis for a claim against him" and plaintiffs "fail to show that the [g]overnor has any connection with the enforcement of the [statute] other than the general duty to take care that the laws be faithfully executed"); see also Spiteri v. Russo, 2013 WL 4806960, *18 (E.D.N.Y. Sept. 7, 2013) (dismissing claims for injunctive relief against Governor Cuomo because plaintiff failed to plead facts demonstrating that he had "direct involvement with [p]laintiff's classification as a sex offender"); Disability Rights New York v. New York State et al, 17-CV-6965-RRM-SJB, 2019 WL 2497907, at *18, 23 (E.D.N.Y. June 14, 2019) (dismissing claims against former Governor Cuomo for violations of the ADA and Section 504 of the Rehabilitation Act because plaintiff's allegations did not outline the former Governor's role in these violations and fail to allege how the relief sought could be implemented by the former Governor). Therefore, all claims against Defendant Hochul are dismissed.

[7] Because the Court dismisses Plaintiffs' complaint under Rule 12(b)(1), the Court does not reach Defendants' additional arguments for dismissal under Federal Rules 12(b)(6) and 12(b)(7)."

PARENT LIMITED IN RIGHT TO USE CHILD'S PERSONAL INJURY SETTLEMENT

David M. v. DM, 2022 NY Slip Op 51045 - NY: Supreme Court, Rensselaer 2022:

"In this personal injury action, and following an October 21, 2021 Infant Compromise Order — which resolved and settled all claims for personal injuries sustained by the Infant arising out of a dog bite incident that occurred in February 2019 — the Infant's parent now petitions the Court for an Order authorizing him to withdraw $7,763.00 from the settlement funds to pay for the Infant's tuition a private Catholic school.

For the reasons that follow the Court denies Petition in its entirety.

As background, on February 1, 2019 the Infant, then age 10 months, sustained a dog bite injury, including bites to her right forehead and eyebrow, and now has two permanent facial scars as a result of the dog bite. The Infant's claim was settled before trial, with the balance of the settlement ($102,849.14) paid to the Infant's parent "to be held for the sole use and benefit of said infant, jointly with an officer of Pioneer Bank, Troy, New York . . . subject to the Order of this Court . . . (and paid over to the Infant) without further Court Order when the infant reaches the age of 18 years."

Now, the Infant's parent asks the Court to authorize the payment to him of $7,763.00 from the settlement funds so that he may pay his daughter's first year tuition for full day pre-school at a private Catholic school. He also tells the Court that he does "not wish to send her to public school . . . (and wishes) to send her to a private Catholic school that will give her a good base education while teaching her religion as well."

To be clear, the Court takes no issue with the petitioner's wish to send his child to a private religious school, and certainly credits his goal of advancing her best interests.

This said, the Court is mindful that an infant's settlement funds "belong to the child alone. . . . awarded to compensate for (her) pain, (her) suffering and (her) incapacity . . . (and are not a substitute) for the necessities of life for which parents are responsible, absent specific proof of financial distress . . . (and a parent's) duty should not be shifted to the Infant" (Joyner-Pack v State of New York, 30 Misc 3d 903, 9135 [Ct Cl, 2012], quotations and citations omitted). Further, any application for approval of an expenditure of an infant's settlement funds must comply with Uniform Rule 202.67(f) — which must include "a statement that the family of the infant is financially unable to afford the proposed expenditures."

However viewed, the record simply does not support the petitioner's request to shift the cost of pre-school to the Infant, however well intended the private religious education maybe. Particularly absent is any plan for the continuing costs of the private education post the proposed pre-school, or a statement of net worth or admissible proof setting out the petitioner's inability to meet his parental obligations.

Lastly, given the nature of the injuries sustained by the Infant, including facial scarring, in the Court's view the Infant's settlement funds are better preserved and should remain intact until she attains majority, rather than be expended by a likely series of continuing requests to spend her moneys for the necessities of life (Serrant v Mossi, 40 Misc 3d 1224(A) [Sup Ct, Bronx County 2013]) — here defined by the petitioner as a private school education."

A PROPOSAL BY UNIFORM LAW COMMISSION

So far only enacted in two states, Washington and Utah. There are many pros and cons to this proposal.

"The Uniform Unregulated Child Custody Transfer Act provides states with a uniform legal framework to prohibit unregulated child custody transfers.  An unregulated child custody transfer is a transfer by a parent or guardian of a child or an individual with whom a child has been placed for adoption that is performed without state agency or court oversight that assures the new custodian is safe and appropriate for the child. The act also requires child-placing agencies to provide prospective adoptive parents with important information and guidance regarding adoptions that have a heightened degree of risk for a disruption or dissolution. 

Article 2 of the act prohibits a parent from transferring custody of a child to someone beyond family members and other specified categories of individuals if the parent intends to abandon the parent’s rights and responsibilities regarding the child. The prohibition applies to a parent or guardian with custody of a child as well as to an individual with whom a child has been placed for adoption. It also prohibits solicitation and advertising for the purpose of transferring or finding a child to transfer in violation of the article, or to facilitate such a transfer. The article provides the child protection agency with authority to perform home visits to investigate probable violations of the act and to take appropriate action to protect the child.  It further provides law enforcement authority with the power to investigate and take legal action to enforce the article. 

Article 3 of the act deals with the adoption of children whose physical or psychological health or other circumstances at the time of a proposed placement for adoption would predict that the adoptive parent might face challenges in caring for the child. It assures that prospective adoptive parents are informed about, and are given instruction on dealing with, the physical and psychological health of the child as well as other issues. It requires a child-placing agency through which an adoption is facilitated to provide the prospective adoptive parent with: (1) general information about adopting a child with certain health or behavioral issues; (2) specific information about the physical and psychological health of their prospective adoptive child; (3) guidance and instruction on dealing with the challenges that may present themselves in rearing the child placed with them; and (4) information on accessing certain post-placement and post-adoption financial assistance and support services to help preserve the adoption.  It provides law enforcement authority with the power to investigate an alleged violation of the article by a child-placing agency and to commence action to enforce the article. It also provides the state licensing agency with authority to suspend or revoke the license of a child-placing agency that has violated the article."

CHILD CARE - CPS FOUNDED REPORT COULD NOT BE SEALED

MATTER OF JEFFREY O. v. NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES, 2022 NY Slip Op 4593 - NY: Appellate Div., 3rd Dept. 2022:

"Petitioner is the father of a child (born in 2017). The child's mother (hereinafter the mother) also has two older children from a prior relationship. In September 2017, petitioner and the mother got into a verbal dispute while driving to a birthday party with the three children. The dispute quickly escalated and petitioner allegedly choked the mother in the children's presence and threw her car keys across the street, prompting one of the older children to retrieve them. The subject child was two months old at the time, and the mother's older children were approximately five and six years old. Police were called and criminal charges were brought against petitioner. The case was ultimately dismissed and the criminal record was sealed in January 2018.

A report was made to the Statewide Central Register of Child Abuse and Maltreatment regarding the incident and, following an investigation by the Cortland County Department of Social Services (hereinafter DSS), the report was marked as indicated against petitioner for maltreatment of the children (see Social Services Law § 412 [7]). The indicated report was forwarded to respondent and petitioner sought to have the report amended to be unfounded and sealed. Following an administrative review, respondent denied the request. An administrative hearing was held before an Administrative Law Judge (hereinafter ALJ), who upheld the denial of petitioner's request, determining that the fair preponderance of the evidence supported the indicated finding of maltreatment and that the report was relevant and reasonably related to childcare issues. Petitioner commenced this CPLR article 78 proceeding challenging that determination, which was transferred to this Court pursuant to CPLR 7804(g).

We confirm. Contrary to petitioner's contention, the finding of maltreatment is supported by a sound and substantial basis in the record. "`To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child[ren] had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child[ren] with appropriate supervision or guardianship'" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d 1181, 1182 [2022], quoting Matter of Gerald HH. v Carrion, 130 AD3d 1174, 1175 [2015]). This Court's review "is limited to whether the determination to deny the request to amend and seal the indicated report is supported by substantial evidence" (Matter of Sleiman v New York State Cent. Register of Child Abuse & Maltreatment, 193 AD3d 1323, 1323 [2021] [internal quotation marks, brackets and citation omitted], lv denied 38 NY3d 905 [2022]; accord Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1182) — "a minimal standard that requires `such relevant proof as a reasonable mind, may accept as adequate to support a conclusion or ultimate fact'" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1182, quoting Matter of Sleiman v New York State Cent. Register of Child Abuse & Maltreatment, 193 AD3d at 1323). "`[H]earsay is admissible in expungement hearings and, if sufficiently relevant and probative, may constitute substantial evidence in support of the underlying determination'" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1182 [citation omitted], quoting Matter of Ribya BB. v Wing, 243 AD2d 1013, 1014 [1997]).

During the hearing, DSS presented testimony from two caseworkers who investigated the underlying incident. Both caseworkers testified that, when they interviewed the mother, she confirmed that she and petitioner got into a verbal altercation, which turned physical. In particular, when they arrived at the party, the mother told petitioner that she was going to drive back home with the children, prompting him to take her keys. When she tried to grab the keys back, she "accidentally ripped [petitioner's] shirt." The caseworkers recounted the mother's statement that petitioner then threw her phone and keys out of the car, walked around to her side of the car and choked her.

When the two older children were interviewed the next day, they confirmed the mother's recounting of the incident, stating that petitioner threw the mother's keys and phone out of the car, prompting the six-year-old child to go into the street to retrieve the keys. One of the children relayed to the caseworker that he saw petitioner choke the mother and confirmed that the children were crying and screaming at the time.

Petitioner's testimony regarding the incident differed in certain respects. According to petitioner, the couple got into a verbal dispute on the way to the birthday party and one of the mother's older children asked them to stop bickering. Once they arrived, the mother started screaming at him to get out of the car. She then got out of the car, went to the baby and started changing his diaper. According to petitioner, when he took the mother's keys out of the ignition, the mother leaned over the baby's car seat, grabbed him by the beard and ripped his shirt. Petitioner then got out of the car, walked over to the mother and asked, "what are you doing?" The mother told him that she was leaving and he responded, "you can leave after I take [the baby] out of the car." The mother then began lunging at him and grabbing at the keys, prompting petitioner to push her away "at her chest." Petitioner admitted that he continued pushing the mother while he was trying to get the baby out of the car, and also threw her keys and phone so she would go get them and leave him alone. Petitioner denied choking the mother during the altercation, stating that it may have appeared that way to the children when he was pushing her away and acknowledging that the incident was "scary" for them. When questioned on cross-examination about why he simply did not walk away from the vehicle when he had the keys in order to de-escalate the situation, petitioner stated that he wanted to take the baby into the party.

Petitioner entered into evidence a February 2019 certificate of completion for an anger management course, as well as various letters submitted by friends and family on his behalf. In one of those letters, a friend who was at the party and present for the altercation confirmed that she "saw [the mother] yelling at [petitioner] and putting her hands on him." She also saw petitioner "pushing [the mother] off of him." A letter from petitioner's sister made a similar representation as it pertained to the mother's conduct. Petitioner also submitted a letter that the mother wrote on his behalf, which stated that he "goes above and beyond for [her] and [the baby], as well as [the two older children]." Although the mother's letter stated that there were no ongoing concerns about domestic violence between the two of them, the letter did not specifically refute the allegations against petitioner pertaining to the September 2017 incident.

In denying petitioner's request to amend and seal the indicated report, the ALJ emphasized that petitioner admitted engaging in a physical altercation with the mother in the children's presence while he was attempting to get the baby out of the car seat and found that his "willingness to engage in violent disagreements over physical possession of an infant constitutes a clear failure to exercise a minimum degree of care." Although the ALJ found that the mother also bore some responsibility, she noted that such "mutual participation does not eliminate the causal connection between [petitioner's] conduct and the risk of harm to the children," as he "chose to exit the vehicle and to re-engage in the physical altercation in the presence of the children, despite having possession of the mother's car keys and telephone."

We conclude that these findings are supported by a sound and substantial basis in the record. Regardless of whether petitioner actually choked the mother, he admitted that he engaged in a physical altercation with her in front of the children while he was attempting to get the baby out of the car seat. He also threw her keys across the street, prompting the mother's six-year-old child to cross the street, unsupervised, to retrieve them. His explanation for persisting in the altercation — that he wanted to take the baby to the party — reveals extraordinarily poor judgment on his part. Notwithstanding the letters submitted by friends and family attesting to petitioner's character, petitioner's conduct amounted to a failure to exercise a minimum degree of care in providing the children with appropriate supervision or guardianship (see Social Services Law § 412 [2] [a]; Family Ct Act § 1012 [f] [i] [B]; Matter of Brown v Velez, 153 AD3d 517, 518 [2017], appeal dismissed 30 NY3d 1028 [2017]). Given that the children witnessed and were in close proximity to the altercation, the two older children were "screaming and crying" during it, and the six-year-old child had to cross the street by himself to retrieve the mother's keys, there is substantial evidence in the record to support the finding that the children's "`physical, mental or emotional condition'" was impaired or was in imminent danger of becoming impaired as a result of petitioner's conduct (Matter of Christopher JJ. v Spencer, 204 AD3d 1193, 1194 [2022], quoting 18 NYCRR 432.1 [b] [1] [ii]). Moreover, the ALJ's finding that petitioner's conduct was "`relevant and reasonably related' to [his] potential involvement in child care, adoption and foster care" (Matter of Tammy OO. v New York State Off. of Children & Family Servs., 202 AD3d at 1184, quoting Social Services Law § 422 [8] [c] [ii]), is supported by the evidence that petitioner studied elementary education, had completed internships in the field and had previously worked at a home for wayward boys. Accordingly, the ALJ's determination will not be disturbed.^[1]

Equally without merit is petitioner's assertion that his due process rights were violated by the ALJ's consideration of "charges that were sealed." Pursuant to CPL 160.50, "[u]pon termination of a criminal action in favor of an accused . . . the record of such action `shall be sealed' . . . and . . . all official records and papers relating to the arrest or prosecution `on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency'" (Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128, 132 [1993], quoting CPL 160.50 [1] [c] [emphasis omitted]). First, we note that the sealed criminal records at issue were not actually offered into evidence in this case and, contrary to petitioner's suggestion, the ALJ did not rely on these records in her determination. Rather, one of DSS's caseworkers referred to the content of the police report during her testimony and relied on a progress note containing statements therefrom to refresh her recollection as to what the report said. In any event, a party who "affirmatively places the underlying conduct at issue by bringing a civil suit" waives the statutory protection afforded by CPL 160.50, which "may not be used as a sword to gain an advantage in a civil action" (Green v Montgomery, 95 NY2d 693, 701 [2001] [internal quotation marks and citation omitted]). In his petition, petitioner emphasized that the criminal charges had been dropped. Inasmuch as petitioner placed the underlying conduct at issue by bringing a civil expungement proceeding and attempted to circumvent liability by relying on the fact that the criminal charges were dismissed, he waived any protections afforded by CPL 160.50 to this matter.

Nor are we persuaded by petitioner's argument that his due process rights were violated by the six-month delay in finalizing the indicated report. Under Social Services Law § 424(7), a child protective services agency has 60 days to determine whether a report of abuse or maltreatment is indicated or unfounded. However, "[t]he time limit imposed is . . . directory, not mandatory, . . . and [a] petitioner is not entitled to have [the agency's] determination vacated on this basis absent a showing of substantial prejudice" (Matter of Maria PP. v Commissioner of NYS Off. of Children & Family Servs., 162 AD3d 1297, 1298 [2018] [internal quotation marks and citation omitted]). A caseworker indicated that the delay here was attributable to high caseloads and petitioner has not established any prejudice flowing therefrom. In these circumstances, the failure to comply with the 60-day deadline does not warrant vacatur (see id.; see generally Matter of Meyers v Maul, 249 AD2d 796, 797 [1998], lv denied 92 NY2d 807 [1998]). Petitioner's remaining contentions, to the extent not expressly addressed, have been considered and found lacking in merit.

Egan Jr., J.P., Pritzker, Ceresia and Fisher, JJ., concur.

ADJUDGED that the determination is confirmed, without costs.

[1] Contrary to petitioner's assertion, the children's statements to one of the caseworkers regarding the incident were generally corroborated by petitioner's own admission that he and the mother engaged in a physical altercation in front of them, regardless of whether any choking was involved. Moreover, petitioner himself testified that the children were scared during the altercation."

IN NEW YORK, IT IS CALLED 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. 

"Ask any parent in the state of New York and they will tell you that being a parent is no easy task. Most parents encounter the usual amount of disobedience from their children with situations such as refusing to clean their room and talking back to a parent. But when this disobedient behavior escalates to skipping school repeatedly or leaving home repeatedly without parental consent, families can feel overwhelmed and are in need of support.

These youth have committed no crime and their behavior may be more indicative of harm they have or are suffering from. Most youth and their families will thrive successfully with community-based services, supports and opportunities.

Each municipality in New York State (NYS) must designate a PINS lead agency that is responsible to assess and intervene to support youth with PINS behavior and their families."

See https://ocfs.ny.gov/programs/youth/pins/

A NEGLECT PROCEEDING

MATTER OF BRANDON IJ v. DAISY D., 2021 NY Slip Op 5206 - NY: Appellate Div., 4th Dept. 2021:

"In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of permanent neglect.

We reject the mother's contention that Family Court abused its discretion in denying the requests of the mother's attorney for adjournments of the fact-finding and dispositional hearings when the mother failed to appear. The record supports the court's conclusion that the mother was fully aware of the court dates, and no excuse was offered for her absences (see Matter of Evelyn R. [Franklin R.], 117 AD3d 957, 957-958 [2d Dept 2014]; Matter of Sophia M.G.-K. [Tracy G.-K.], 84 AD3d 1746, 1747 [4th Dept 2011]; see generally Matter of Tyler W. [Stacey S.], 121 AD3d 1572, 1573 [4th Dept 2014]).

Contrary to the mother's contention, the court properly determined that petitioner demonstrated by clear and convincing evidence that it made the requisite diligent efforts—i.e., "reasonable attempts . . . to assist, develop and encourage a meaningful relationship between the parent and child" (Social Services Law § 384-b [7][f])—to reunite the mother with the child (see § 384-b[7][a]; Matter of Sheila G., 61 NY2d 368, 380-381 [1984]; Matter of Jerikkoh W. [Rebecca W.], 134 AD3d 1550, 1550 [4th Dept 2015], lv denied 27 NY3d 903 [2016]). Petitioner coordinated regular visitation with the child, provided the mother with transportation assistance to those visits, encouraged the mother to obtain the required substance abuse and mental health treatment, referred her to agencies that assisted with people suffering from a traumatic brain injury, encouraged her to maintain employment and housing, and offered her budget counseling. We reject the mother's further contention that petitioner failed to establish by clear and convincing evidence that she permanently neglected the child. The evidence established that, among other things, the mother failed to complete mental health and substance abuse treatment and failed to obtain adequate and safe housing during the relevant time period (see Matter of Eden S. [Joshua S.], 170 AD3d 1580, 1582-1583 [4th Dept 2019], lv denied 33 NY3d 909 [2019]; Matter of Miguel Angel S. [Wendy Carolina S.], 155 AD3d 587, 588 [1st Dept 2017]; Matter of Peter D., 262 AD2d 998, 998-999 [4th Dept 1999]).

Contrary to the mother's contention, the court did not abuse its discretion in refusing to issue a suspended judgment. A suspended judgment "is a brief grace period designed to prepare the parent to be reunited with the child" (Matter of Michael B., 80 NY2d 299, 311 [1992]; see Family Ct Act § 633) and may be warranted where the parent has made sufficient progress in addressing the issues that led to the child's removal from custody (see Matter of James P. [Tiffany H.], 148 AD3d 1526, 1527 [4th Dept 2017], lv denied 29 NY3d 908 [2017]; Matter of Sapphire A.J. [Angelica J.], 122 AD3d 1296, 1297 [4th Dept 2014], lv denied 24 NY3d 916 [2015]). Here, the evidence at the dispositional hearing established that the child had been removed from the mother's care when he was approximately eight months old and had been in foster care ever since, that the child had been with the same foster mother for almost 2½ years, and that the foster mother was willing to adopt the child. In addition, the evidence established that the mother had made no progress in addressing the issues that led to the removal of the child and still had only supervised visits with the child. We therefore conclude that the court properly determined that a suspended judgment was unwarranted.

The mother contends that she was deprived of her right to the assistance of counsel or to effective assistance of counsel at the dispositional hearing. We reject that contention. At the start of the dispositional hearing, the mother failed to appear, and her counsel elected not to participate. The court heard the testimony of petitioner's caseworker and, after a lunch break, the mother appeared in court and her counsel resumed participating. We conclude that counsel's decision not to participate when the mother was absent was tactical and did not deprive the mother of representation or meaningful representation (see Matter of Thaiheed O.H., 162 AD3d 477, 478 [1st Dept 2018]; see generally People v Diggins, 11 NY3d 518, 525 [2008])."

COVID, PARENTING AND VACCINE

C.B. v D.B., 2021 NY Slip Op 21268, Decided on October 7, 2021, Supreme Court, New York County. Cooper, J. :

"Throughout most of modern medical history, the advent of a vaccine was almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. In my lifetime, I need only think of how polio was eradicated in this country [*2]as a result of the vaccine first developed by Jonas Salk, with other diseases, such as measles, rubella, and diphtheria, having been similarly eliminated.

Then came COVID-19. Fortunately, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of COVID-19, but ultimately to completely vanquish the virus. Unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of "individual liberty," have refused all entreaties to be vaccinated.

In this ongoing divorce case involving a three-year-old child, the issue of COVID-19 vaccination is now before me. The issue is not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor is it one of whether I can require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths. Instead, the issue is whether the plaintiff-mother, who has de facto custody of the child and is fully responsible for her care and upbringing, can condition the defendant-father's access with the child, which is limited and supervised, on defendant and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods.

BACKGROUND

The parties were married in 2015, and their child, a daughter, was born in 2018. After intense marital discord, plaintiff commenced this action for divorce in September of 2019. Since that time, the high-conflict nature of this action has only increased. Plaintiff, recounting defendant's history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have defendant's access subject to supervision. Sharing plaintiff's concerns for the child's safety and well-being while in defendant's care, I directed, by an order dated May 13, 2021, that his parental access be supervised by Comprehensive Family Services, an independent parenting services agency. I later modified the order to permit supervision by defendant's parents.

Although there has yet to be a final determination as to custody, plaintiff is the residential parent, with the child living exclusively with her in Manhattan, where the parties lived prior to their separation in 2019 and where the child attends preschool. Defendant lives with his parents on Long Island. His parenting time with his daughter is limited to daytime access every other weekend and continues to be supervised by his parents, mainly his mother. The child is represented by a Guardian ad Litem (the "GAL") appointed by the court.

On September 2, 2021, plaintiff, joined by the GAL, made an emergency oral application for defendant and any supervisor utilized for defendant's access to be vaccinated against COVID-19. On that date, I issued a Temporary Restraining Order (TRO) suspending defendant's in-person access on an interim basis until he was vaccinated. Plaintiff, as directed, subsequently brought a formal motion by Order to Show Cause seeking the same relief, with defendant having submitted his affidavit and his attorney's affirmation in opposition, and the GAL having submitted an affirmation in support.

I heard oral argument on the motion virtually on September 15, 2021. At argument, both plaintiff and the GAL stipulated on the record that, in lieu of defendant showing proof of his being vaccinated, they would accept his agreeing to a regular protocol of COVID-19 testing as a condition for the resumption of in-person parenting time. Defendant, for reasons that seemed more connected to his animosity to plaintiff than anything else, refused this reasonable proposal.

Following the argument, I continued the TRO but amended it to provide that defendant's [*3]in-person access with the child would remain suspended until he and any approved supervisor either received a first dose of a COVID-19 vaccine or submitted to a COVID-19 testing regimen that included a PCR test once per week and a COVID-19 antigen test (AKA "rapid test") within 24 hours of any in-person visit. As with the original TRO, defendant was to continue to have liberal virtual and telephone access.

DISCUSSION

It is well-established that there is a "rebuttable presumption that visitation by a noncustodial parent is in the child's best interest and should be denied only in exceptional circumstances" where "compelling reasons and substantial evidence show that visitation would be detrimental to the child" (Matter of Josephine F. v Rodney W., 168 AD3d 486 at 486 [1st Dept 2019]) or is otherwise "inimical to the welfare of the child" (Matter of Granger v Misercola, 21 NY3d 86, 90 [2013]). Further, "[t]he paramount concern when making a parental access determination is the best interests of the child, under the totality of the circumstances" (Marino v Marino, 183 AD3d 813, 816 [2d Dept 2020], quoting Matter of Velasquez v Kattau, 167 AD3d 912, 913 [2d Dept 2018]).

Here, in-person parental access by defendant is not in the child's best interests, and there are exceptional circumstances that support its suspension. The danger of voluntarily remaining unvaccinated during access with a child while the COVID-19 virus remains a threat to children's health and safety cannot be understated. Although some children infected with the virus experience mild symptoms, others are subject to serious illness and long-term health effects. Children under the age of 12 have not yet been approved to receive COVID-19 vaccines, so they are dependent upon the vaccination and health status of the adults around them. The danger extends beyond this child and includes a risk of serious infection to any person with whom the child comes into contact, including plaintiff, the child's classmates, and their families.

New York is transitioning towards a "new normal" where citizens are taking precautions to balance staying safe from COVID-19 and its variants alongside the desire to return to some semblance of regular life. The widespread availability of three different no-cost COVID-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated in order to participate meaningfully in everyday society. As of August 17, 2021, New York City requires everyone over the age of 12 to provide proof of vaccination to enter bars, restaurants, indoor entertainment, and gyms. New York City public employees, public school teachers, police officers, health care workers, and others are being required to be vaccinated in order to continue their employment. The Federal Government has mandated proof of vaccination or a recent negative COVID-19 test policy for workplaces with over 100 employees, and the same or both is required to travel to many foreign countries. Unvaccinated individuals can even be precluded from serving on juries before the U.S. Federal Court. And as of the last few weeks, the New York's Unified Court system is mandating vaccination for all court employees, including judges, clerks, and court officers, with those qualifying for a narrow range of exemptions required to submit to weekly testing.

Most relevant to this case, the child's preschool requires that teachers, staff, and any parent who participates in pick-ups or drop-offs or is otherwise involved in any school activity all be vaccinated. Defendant professes to love his daughter with all his being, and he asserts that he wants nothing more than to play an active and meaningful role in her life, which, presumably, would include dropping her off and picking her up from school and being part of her school [*4]community. Nevertheless, he adamantly refuses to do what his daughter's schoolmates' parents have all been required to do—be vaccinated.

Defendant's arguments against vaccination are unconvincing. In response to plaintiff's emergency oral application on September 2, 2021, defendant stated that because he already had COVID-19, he believed he carries sufficient antibodies to the virus. To this end, he asserted he would consult with his doctor and provide expert medical opinion as to if he should receive the vaccine, and if so, when. In his affidavit in opposition, however, defendant abandoned that argument and seemingly never consulted with a medical professional about being vaccinated. Instead, he adopted the novel position that his "religious beliefs as a Roman Catholic" precluded him from receiving the vaccine. This justification rings hollow given that Pope Francis, the head of the Catholic Church, is vaccinated and has encouraged Catholics everywhere to be vaccinated for "the common good." Defendant also sought to depict any vaccination requirement as an unreasonable intrusion on his rights as an American citizen. In doing so, he failed to recognize that those rights are not absolute but are subject to his duty as a citizen to other citizens and his duty as a parent to his child.

It is not necessary to more fully address defendant's reasons for not being vaccinated, be they medical, religious, or constitutional. This is because he was offered an alternative to vaccination: submit to regular COVID-19 testing. When presented with this option, defendant rejected it outright unless the plaintiff was subject to the same testing regimen. Given that plaintiff is fully vaccinated, and she has daily in-person contact with the child as her full-time residential parent, it is apparent that defendant's ultimatum was motivated by a desire to burden the plaintiff as opposed to a commitment to keeping his child safe.

In suspending defendant's in-person access on an interim basis, I am, of course, cognizant of the pronouncement of our Court of Appeals in S.L. v. J.R., 27 NY3d 558 (2016) that even temporary custody determinations should generally be made only after a plenary hearing. The Court recognized, however, that the "'general' right to a hearing is not an absolute one" (id. at 563). There are multiple reasons here not to deprive plaintiff and the GAL of the relief they seek without having to wait weeks or months for a plenary hearing. These include the exigency of the circumstances with the risk of imminent harm to the child, the already extensive experience I have with the parties and my familiarity with their issues involving defendant's parental access, and the fact that, by necessity, matrimonial courts routinely determine temporary access schedules—unlike determining custody—on motion papers and argument alone.

CONCLUSION

In the final analysis, the fundamental question in this dispute between the child's two parents is this: What matters more to each of them, his or her own interests or those of their child? On one hand, there is the defendant-father, who is unable to offer any reasonable, let alone compelling, reason why he should not be vaccinated or even undergo testing, resisting both simply because he sees it as his "right" to do so. On the other hand, there is the plaintiff-mother, who is fully vaccinated and observant of COVID-19 protocols, seeking the imposition of reasonable conditions on defendant's access not because it somehow benefits her, but because it serves to protect the health, safety, and well-being of the child.

Inasmuch as I find that requiring defendant and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child's best interests, plaintiff's motion is granted. Accordingly, defendant's in-person parental access with the child is suspended until such time as he complies with the terms of the amended Temporary [*5]Restraining Order. Defendant shall continue to enjoy liberal virtual and telephone access with the child."

DRUG ADDICTION AND PARENTING

Matter of D.J., NYLJ January 04, 2021, Date filed: 2020-09-30, Court: Family Court, Bronx, Judge: Judge Ronna Gordon-Galchus, Case Number: NN-06164-65/20 (italics supplied):

"....In the case at bar, the extensive documentary evidence, coupled with the in-court testimony requires continued removal of the subject children, as they would be at “imminent risk” if returned to RM’s care. RM has a long, protracted history with child protection services in Florida, an extensive history of using flakka and cocaine, and her two older, though very young, children have been adopted by her mother who resides in Florida. RM tested positive for cocaine and marijuana, as did SC F.J. at the time of her birth in February of 2020 and RM admitted using cocaine during her pregnancy with F.J. during her testimony. The child D.J. is 16 months old and F.J. is 7 months old, and thus particularly vulnerable.

In evaluating and assessing RM’s testimony, it is apparent that she yearns to have her children return to her care. However, she lacks insight as to the level of care, monitoring, and long-term planning required to address her drug addiction. Although she submitted to drug testing through her out-patient program, such testing was not random, as she knew what days screenings would occur. A review of the lab results submitted by Respondent as Exhibit C show that the screening was done nearly exclusively on Tuesdays and Thursdays. It was not until a time in August 2020 that she began to comply with random testing by the Agency. The evidence shows that she failed to submit to testing by the Agency for the entire month of July as well as August 11 and 13. Her reasons for not being compliant, such as she may have been out of town, had doctor appointments or school were not persuasive and were self-serving. Her testimony that she went to Atlantic City to celebrate her birthday with RF and therefore was not available for screening demonstrates an example of her failed insight and ability to fully appreciate her addiction. Although “laudable” that she completed the outpatient program at Samaritan Village, “that participation does not successfully overcome her prior inclinations and behavior patterns, despite what may be the best intentions.” In re Kimberly H., 242 A.D.2d 35, 39 (1st Dept. 1998); Matter of Nyasia J. v. Francesca J., 41 A.D.3d 478, 479 (2nd Dept., 2007). The Florida child protective history documents are alarming. RM abandoned her older children for periods of time without communication as to her whereabouts. The entries state RM “has a history of leaving the children for long periods. Every time the mother leaves, she gives different explanations.” She required hospitalization when she was six months pregnant with her second child for testing positive for cocaine. This also discredits her affidavit which states: “F.J. was my 10th pregnancy. Right before D.J. I had two miscarriages. I did not use any drugs during the pregnancies of any of my other kids.” When trying to explain this inconsistency, she stated that she “figured my two older kids aren’t part of this case. That’s why I put that in the affidavit.” During her testimony, she referred to the positive toxicology in February of 2020 as a “hiccup,” and her reason for using cocaine in January and February of 2020 was a source of self — medication since she was in pain during her pregnancy. She denied using drugs past 2016, but had a positive test for cocaine in January 2017, as reflected in the reports from Florida. RM’s 2018 psychiatric evaluation reports that “she claims to be sober since April 2017.” RM was in two prior inpatient drug rehabilitation programs in Florida during 2016, 2017 and 2018. She testified that she was court-ordered by “her criminal judge” and thus did not enter of her own volition. Her affidavit specifically states that she was told to either go into an inpatient program or face criminal charges. Although the evidence indicates she was recommended for an inpatient program during her CASAC evaluation, she denied that. She states in her affidavit, “I did not need inpatient.”

This Court had ordered that RF and RM visit the children separately. However, there were times when the two visited the children together. Case planner O. states in her affidavit that when RF was told the visit had to be separate, he replied, “No. We are not doing that.” Although reasons offered for this violation of the court order were that they shared one car, RM also testified that the car is in her mother’s name and belongs to her. Caseplanner O testified that case planner C notified her that during a visit he smelled marijuana emanating from the car and RF D.J.’s “eyes seemed bloodshot.” RF has not complied with agency’s referrals and most recently tested positive for marijuana on July 27 and marijuana and cocaine on August 6, 2020. RF denied using cocaine when he testified on September 14th. Both RM and RF testified that RF travels often and now resides most of the time in Connecticut. However, both he and RM are the lease holders of their current residence, a lease which RM stated expires on September 29, 2020. Both left Florida in 2019 and came together to New York. The child protective documents from Florida state that RM was not interested in reunifying with her older children by moving into her mother’s home where the children lived. Rather, when she was discharged from the halfway house in June of 2018 and “chose to move in with her boyfriend rather than moving in with the MGM.” RM was reported as saying, “I do not want to choose between my children and the man I am about to marry.” At the hearing she denied making that statement and testified. “No, I never told them that. Not to my knowledge.” She testified that she and her older daughter A (not a subject child) visited RF at a halfway house and that he had recently been released from jail, but stated that she could not recall why he had been in jail. RF testified that he was at the halfway house because he violated his probation, and that he was on probation for delivery of cocaine which he admitted was selling cocaine. This Court does not credit RM’s testimony that she could not recall this information. She also denied telling Florida authorities that RF was a drug user, though the Florida documents state, “she reported that her boyfriend whom they call ‘D.J’ is also a drug user.” This Court does not credit RM’s testimony that she cannot recall this information about RF. Though not legally married, both RF and RM refer to each other as husband and wife. RM introduced an August 2018 Florida Court order (Exhibit H) to show that she had unsupervised visits with her older children and there was no prohibition about having RF present. However, the Florida child protective documents include entries that RM was told by the judge that her boyfriend (RF) was not to be present during visits. RM denied this. A new abuse case was called in October 2018 because RM took her daughter, A, to the halfway house to visit RF. A disclosed to her teacher that while she was at her mother’s boyfriend’s home, her mother told her to “put the pillow over my head so I couldn’t see anything.” It should also be noted that Exhibit H has a handwritten entry which states, “the caregiver does not believe the mother has gained insight,” and that the “caregiver believes mother has deserted the family.”

In the past RM has been prescribed various psychotropic medication such as Seroquel, Lexapro, Zoloft, Wellbutrin, and Prozac. She had a psychiatric evaluation in October 2018 where it was reported that RM had a history of being diagnosed with depression, anxiety, and PTSD. It was recommended that she see a psychiatrist monthly to monitor her mood and determine her need for medication. RM did not recall having this evaluation. The report also indicates that RM stated, “I was on medications. I stopped them last April. I do not want to be on meds. I want to see if I can handle it on my own. My depression comes and goes.” In evidence as Respondent’s A is a letter dated August 12, 2020 from RM’s therapist Luiz Lopez. Mr. Lopez did not testify. His letter states that RM had an initial intake appointment with him on June 24, 2020 and attended four sessions and requested that two be rescheduled. The letter indicated that he discusses coping skills and managing stress. She is engaged and asks questions. No other details were provided. This letter was extremely limited in nature. When questioned about taking medication, RM testified:” Me, personally, I don’t believe in medication and I don’t want to take no type of medication.” She also testified that when her therapist asked if she wanted to be referred to a “psych doctor” because I let him know how I’m always in my head” she told him “I don’t need so (sic) psych doctor.” When questioned about her therapy and asked how long she will continue with therapy, she stated, “I am going to do that for a while. I mean, not a long period, but I’m going to continue with it.”

Although the attorney for the child now supports the 1028 application, she had opposed overnight visitation a few months ago and requested that the ICPC process begin so the children can reside with the maternal grandmother in Florida.

The agency’s concerns that RM’s ability to enforce an order preventing RF from being present is only one consideration in this matter. RM’s long standing drug addiction, her failure to address her true needs and the reason for the removal, as well as her failure to report for random tests puts the children at imminent risk. See Matter of Audrey L., 147 A.D.3d 838 (2nd Dept. 2017). RM’s compliance in attending a short outpatient program and her limited engagement in therapy does not negate imminent risk. Her testimony clearly indicates that she wants to dictate the course of services as opposed to getting what she needs for long term recovery. When confronted with questions which are uncomfortable, she denies or does not recall. When RM’s attorney asked if she was willing to participate in additional referrals if asked by ACS, her initial response was, “I mean if I have to. I mean if it’s — yes. I’ll say yes. Yes.” This response also reflects RM’s reluctance at this time. RM often attempted to make excuses for herself and her response to answers were indicative that she lacks insight to the severity of her addiction. Her denial or lack of knowledge of RF’s behavior, her belief that he will not violate any court orders, and her statement in 2018 statement about having to choose between RF and her children further emphasize her inability to be ready to care for her children.

Unlike the situation in In re Gavin S., 52 Misc. 3d 1221(a) (Kings County Family Court 2016), which counsel for respondent referred to in summation, RM in the case at bar lacks “insight” into her “treatment needs.” Similarly, counsel’s reliance on Matter of David G., 29 Misc.3d 1178, 1186 (Kings Family Court 2010) and Matter of Baby Boy D., 127 A.D.3d 1079 (2nd Dept. 2015) is not comparable, as removal in the instant case is not “based on assumptions, guesswork and unsupported predictions of future behavior” but rather after assessing the documentary and testimonial evidence including RM’s credibility, behavior and lack of insight.

The road to recovery and rehabilitation is a long journey. RM has begun that process. It is paramount that she continues to take steps forward, toward the goal of reunification. She has struggled and continues to struggle with her drug addiction. Each relapse and reluctance to participate in a full scope of services and monitoring is a step backwards. This Court does not believe that RM has the current protective capacity to care for F.J. and D.J.. RM must be open to participate in intensive drug counseling, a mental health evaluation which includes any recommendations for medication management, and long-term therapy to address her drug and mental health issues. However, in order to be successful, she must participate in these services because she wants to, not because of an order. She left Florida and came to New York, but now wishes to return to Florida. Her own stability must be addressed before she can care for her own children. F.J. and D.J. are infants and do not have the protective capacity to ensure their own safety in their mother’s care. See Matter of Novelise M., 54 Misc.3d 1202(A) (Bronx Family Court, 2016). RM has made some steps on the road to reunification, but this journey is very much still in process.

This Court finds that continued removal of the children from RM is necessary to avoid imminent risk to their life or health. This decision is made after a thorough evaluation of the documentary and testimonial evidence and counsels’ arguments. At this time, orders cannot be put in place to mitigate that risk. However, the Court does take notice both of RM’s engagement with some services, her recent compliance with random testing, and the importance of the bonding process which is critical for these very young children. Therefore, some sandwich unsupervised community visits will be permitted under the following conditions."