NY CHILD WELFARE - SEEKING VISITATION AFTER CHILD REMOVED THROUGH AN EXPERT

The assumption is that the father was asking for the court to pay for this expert assessment and further ask that it be dispositive.

MATTER OF ZV, 2025 NY Slip Op 50100 - NY Co. Family Court 2025:

YAEL WILKOFSKY, J.

"On or about May 31, 2024, the petitioner Administration for Children's Services ("ACS") filed a Family Court Act ("FCA") Article 10 neglect petition on behalf of the subject child Z.V. (the "subject child") against the respondent J.V. (the "respondent father"). The respondent father now moves for an Order directing that a visitation assessment be conducted by S.N., LMSW, to assess what, if any, parental visitation or conduct is recommended between the respondent father and the subject child. For the reasons set forth below, the respondent father's motion is denied.

The petition alleges that the respondent father fails to provide the subject child with proper supervision and guardianship based on allegations of excessive corporal punishment. Specifically, the allegations in the petition are as follows. On or about May 22, 2024, the respondent father burst into the bathroom of their apartment and told the subject child, who was 12 years old at the time, to "square up." The respondent father then took the subject child's laptop and antagonized her to take the laptop back from him. When the subject child attempted to retrieve her laptop from the respondent father, he placed her into a chokehold with his arm around her neck. The subject child then went into the kitchen and the respondent father followed her, at which point the respondent father again placed her in a chokehold and wrestled her to the living room floor. The subject child reported that during the incident, she felt strangled and like she was about to die as she was struggling to breathe and could not feel oxygen. After the respondent father released the subject child from the chokehold, the subject child ran out of the apartment, went to her former school to report the incident, and refused to return to the respondent father's home. On or about May 23, 2024, a forensic interview was conducted at the Manhattan Child Advocacy Center ("CAC") during which the subject child disclosed that the respondent father had wrestled her to the floor prior to the May 22, 2024 incident and that he does so whenever she behaves badly in school or is disrespectful. At the CAC interview, the subject child was observed to have a quarter-sized brown bruise in the center of her right cheek, two-inch long red scratch marks on her right forearm and a red mark on her left forearm, which, the subject child reported, were caused by the respondent father during the May 22, 2024 incident. Thereafter, the subject child was brought to the hospital, received medical attention and was subsequently discharged.

On May 31, 2024, at intake on the neglect petition, the Court removed the subject child from the respondent father, finding that it would be contrary to the subject child's welfare to return home to the respondent father and that removal was necessary to avoid imminent risk to the subject child's life or health. The Court temporarily directly placed the subject child with her adult half-sister. The Court issued a full stay away temporary order of protection against the respondent father on behalf of the subject child except for agency supervised visitation, at the subject child's discretion. At a June 10, 2024 court appearance, the respondent father made an application for resource supervised visitation and family therapy. The subject child's counsel opposed the request on the grounds that there had not yet been any agency-supervised visits based on the subject child's steadfast refusal to visit with the respondent father, that she had not yet spoken to the subject child about expanding to resource-supervised visits and that based on the allegations in the petition, the respondent father should be engaged in his own services prior to beginning family therapy with the subject child. The Court issued an Order permitting the respondent father to have resource-supervised phone contact with the subject child, at the subject child's discretion, and reiterated that all in-person visitation was to be agency-supervised and at the subject child's discretion. At a court appearance on July 25, 2024, the Court again addressed visitation between the respondent father and the subject child. The Child Protective Specialist ("CPS") assigned to the case informed the Court that the subject child was reluctant to have in-person visitation with the respondent father, even if the visits were supervised, and that although the subject child loves her father, she was not yet ready to have virtual visits with him either as she was still working through her feelings about the respondent father's behavior toward her. At a court appearance on November 18, 2024, when discussing visitation, counsel for the subject child informed the Court that in October 2024, the subject child had a telephone visit with the respondent father that did not go well, specifically, that during the visit, the respondent father was crying to the subject child asking the subject child to return home and blaming the subject child's sister for things that the subject child felt were the respondent father's fault. Counsel for the subject child further reported that the subject child did not wish to have any visits with the respondent father, that she wanted to remain in her sister's care and that the subject child would like to engage in therapy. Counsel for the subject child also asserted that perhaps if the respondent father was engaged in his own therapeutic services, the subject child would be less reluctant to visit with him. Additionally, counsel for the subject child requested that the respondent father provide the subject child with all her personal belongings which had remained in his home since the case was filed. The Court ordered that the respondent father give the subject child all her personal belongings and that the petitioner assist in ensuring that the subject child obtain all her belongings from the respondent father's home. The Court also ensured that the petitioner was making a referral for individual therapy for the subject child.

The respondent father's motion for an Order directing that a visitation assessment be conducted by S.N., LMSW, to assess what, if any, parental visitation or conduct is recommended between the respondent father and the subject child, is denied as the Court finds that it is not in the subject child's best interests to undergo such an assessment. Initially, the Court finds that the visitation assessment that the respondent father seeks is akin to a forensic evaluation conducted in custody cases and is not appropriate in a neglect case such as this one. Moreover, even if such a visitation assessment were appropriate, the Court finds that there is no need for such an assessment, which would be intrusive and burdensome to the subject child, as the Court is in the best position, and has all the information it needs, to make the assessment about what type of visitation between the respondent father and the subject child is appropriate in this case.

Indeed, throughout this case, based on all the information before it, the Court has assessed the type of visitation that is in the subject child's best interests and permitted the respondent father to have supervised in-person visitation with the subject child only at the subject child's discretion based on such assessment. Pursuant to FCA 1030(a), "[a] respondent shall have the right to reasonable and regularly scheduled visitation with a child in the temporary custody of a social services official unless limited by an order of the family court." "[T]he presumption that parental visitation is in the best interests of a child [may be] overcome by evidence showing that visitation with respondent would not be in [the child's] best interests" (In re Giovanni H.B., 172 AD3d 489 [1st Dept 2019]).

Initially, the Court determined that visitation with the respondent father only at the subject child's discretion is in the subject child's best interests because the subject child, who is a mature and articulate 13 year-old, has been adamant that she does not want visits with her father. Indeed, the record reflects that the subject child did try to visit with her father but that the visit did not go well because the subject child felt that the respondent father did not take accountability for his actions.

However, the subject child's refusal to visit with the respondent father is not the only factor the Court considered in making such a determination, although it is certainly an important one. In addition, the Court based its determination on the respondent father's failure to demonstrate a commitment to ensuring that the subject child's needs are met and to complying with court orders. The subject child has reiterated, to the Court and to the respondent father, that prior to continuing any visitation with the respondent father, she would like to engage in therapy to work through trauma she has experienced. However, petitioner has made numerous requests, over a period of approximately six months, that the respondent father provide his medical insurance information so that the subject child may be referred for therapeutic services. However, despite these requests, the respondent father failed to provide the petitioner with active insurance information and thus, the subject child has not yet been referred for mental health services. Indeed, in her affirmation attached to the petitioner's opposition to the motion, CPS affirms that although the respondent father has provided some insurance information, and only after numerous requests were made, the information provided was inaccurate. Moreover, CPS affirms that she notified the respondent father that he had provided inaccurate insurance information and requested additional information, but that as of January 10, 2025, the respondent father has not been responsive or forthcoming with the correct insurance information. The Court notes that at argument on the motion on January 28, 2025, the petitioner informed the Court that the respondent father had just recently provided new medical insurance information, but that petitioner had not yet had an opportunity to check whether the insurance was active and whether the information was accurate.

Additionally, the Court based its determination on the respondent father's refusal to provide the subject child with her personal belongings, despite the Court's order that he do so. The subject child has repeatedly requested that the respondent father give her all her personal belongings, which have remained in the respondent father's home since the petition was filed in May 2024. Indeed, the Court ordered such relief on the record and ordered that the petitioner assist in ensuring that the subject child obtains her personal belongings from the respondent father's home. However, the respondent father has refused to give the subject child her personal belongings, allegedly because she was not agreeing to visitation. Moreover, when the petitioner reached out to the respondent father to coordinate the transfer of the subject child's personal belongings, the respondent father refused or was unresponsive. The Court notes that at argument on the motion on January 28, 2025, the petitioner informed the Court that the respondent father finally provided the subject child with her personal belongings, one week prior to argument on the motion, despite the fact that the subject child has been requesting those items since at least November 2024, if not earlier.

The respondent father's reliance at argument on a recent First Department case, Matter of Michael B. v. Patricia S., 2024 NY Slip Op. 06005 (1st Dept 2024), is misplaced as that case is distinguishable. As an initial matter, Matter of Michael B. is a custody case and not a neglect case such as this one. Additionally, in that case, the First Department held that "[a] court may not delegate its authority to determine visitation to either a parent or a child" and that "[w]hile a child's views should be considered when determining issues of custody or visitation, they should not be determinative." Matter of Michael B. v. Patricia S., 2024 NY Slip Op. 06005 at 2. Here, the Court has not delegated its authority to determine visitation to the subject child and is also declining to delegate its authority to a third-party social worker, despite the respondent's request.As the Court has explained, the Court, and the Court alone, has assessed what type of visitation is in the subject child's best interests at this time and has repeatedly explained to the respondent father that his behavior during the pendency of the neglect case plays a role in the Court's visitation assessment. Indeed, the Court continuously assesses and re-assesses the type of visitation that is in the subject child's best interests based on new information provided to the Court, and the respondent father has failed to offer a sufficient basis for this Court to delegate such assessment to a third-party social worker.

Based on the foregoing, the respondent father's motion for an Order directing that a visitation assessment be conducted by S.N., LMSW, to assess what, if any, parental visitation or conduct is recommended between the respondent father and the subject child, is denied. This constitutes the decision and order of the Court."

CHILD WELFARE NOT IMMUNE FROM LIABILITY FOR PERSONAL INJURIES TO FOSTER CHILD

PD v. County of Suffolk, 2024 NY Slip Op 3405 - NY: Appellate Div., 2nd Dept. 2024:

"WOOTEN, J.

APPEAL by the defendant County of Suffolk, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (David T. Reilly, J.), dated April 6, 2023, and entered in Suffolk County. The order, insofar as appealed from, denied that branch of the motion of the defendant County of Suffolk which was for summary judgment dismissing the complaint insofar as asserted against it.

This appeal concerns the novel issue of whether a municipality is immune from liability for personal injuries allegedly sustained by a foster child during visitation supervised by a department of social services caseworker. We hold that under such circumstances, a municipality may assume a special duty to the foster child and be subject to liability.

I. Background

The plaintiff father (hereinafter the father) and nonparty mother (hereinafter the mother) have two children together, including the infant plaintiff, who was born in 2017. In 2017, the children were removed from their parents' custody and placed in kinship foster care with their paternal grandmother (hereinafter the foster parent).

On September 21, 2019, the foster parent drove the infant plaintiff, then two years old, and the infant plaintiff's four-year-old sister to Mashashimuet Park in Sag Harbor for a supervised visit with the mother. After leaving the children in the care of Kevin Byrne, the assigned caseworker for the Suffolk County Department of Social Services (hereinafter the DSS), the foster parent left the park to go to work. Byrne testified at his deposition that it was the policy and procedure of the DSS that no visit could start until an employee of the County was present to supervise. After the foster parent dropped off the children, Byrne walked them to the playground for the visit with the mother, who had brought a 10-year-old daughter who was in the mother's custody.

During the supervised visit, the infant plaintiff allegedly was injured when she fell on a slide while attempting to walk up the portion intended for children to slide down. The slide on which the accident occurred was in an area of the playground designated with a sign as intended for children 5 to 12 years old. The foster parent testified at her deposition that she believed that the slide was "[w]ay too big for [the infant plaintiff]." Byrne acknowledged that he did not observe the accident or the infant plaintiff walking up the slide prior to the accident, and that he learned of the accident shortly thereafter from the mother's 10-year-old daughter. Byrne estimated that the infant plaintiff was playing on the slide for approximately four to five minutes prior to the accident. According to Byrne, at the time of the accident, the mother was standing by the top of the slide. The mother testified at her deposition that after the accident, Byrne told her to "give [the infant plaintiff] a couple of minutes" because there was no visible redness or swelling.

The foster parent testified that when she arrived at the playground, she learned that Byrne had not called for an ambulance because he was "fumbled for words." She also indicated that Byrne was "not in good health" and, therefore, was "[p]hysically unable" to pick up the infant plaintiff, who was unable to walk following the accident.

Byrne testified that his role during the supervised visit was to "[b]asically observe," although he acknowledged that he could intervene if he observed anything during the visit that he believed "might be inappropriate or dangerous for the child" or if the mother permitted the infant plaintiff to engage in an activity that he felt was inappropriate.

In 2020, the infant plaintiff, by the father, and the father individually (hereinafter together the plaintiffs), commenced this action, inter alia, to recover damages for personal injuries against, among others, the County of Suffolk. The plaintiffs alleged, among other things, that the accident was caused by the negligent supervision of Byrne.

After joinder of issue, the County moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In support of the motion, the County argued, among other things, that it was immune from liability, since Byrne was performing a governmental function involving the exercise of discretion and did not owe a special duty to the infant plaintiff. The County asserted that Byrne's role was "simply to observe that the children in fact visit with their parent in an effort to maintain and strengthen the parental bond," and that the accident took place "under the direct supervision of [the infant plaintiff's] biological mother." The County also argued that there was no evidence that any action or inaction by Byrne proximately caused the accident.

In an order dated April 6, 2023, the Supreme Court, inter alia, denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it. The court determined, among other things, that the County failed to establish, prima facie, that it was immune from liability based on discretionary conduct and that Byrne's alleged negligent supervision was not a proximate cause of the infant plaintiff's injuries. The County appeals.

On appeal, the County argues, inter alia, that it did not owe a special duty to the infant plaintiff. The County also contends that even assuming, arguendo, a special duty existed, it is immune from liability for the performance of a governmental function involving the exercise of discretion. In any event, the County argues that its alleged negligent supervision was not a proximate cause of the accident.

II. Analysis

A. Governmental Immunity

"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose" (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425; see Marino v City of New York, 223 AD3d 888, 889). "If the municipality is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence" (Trenholm-Owens v City of Yonkers, 197 AD3d 521, 523; see Applewhite v Accuhealth, Inc., 21 NY3d at 425). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" (Applewhite v Accuhealth, Inc., 21 NY3d at 425 [internal quotation marks omitted]).

"Once it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a duty to the injured party" (Santaiti v Town of Ramapo, 162 AD3d 921, 924; see Applewhite v Accuhealth, Inc., 21 NY3d at 426). "In order to sustain liability against a municipality engaged in a governmental function, `the duty breached must be more than that owed the public generally'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Lauer v City of New York, 95 NY2d 95, 100). "Indeed, `although a municipality owes a general duty to the public at large . . . this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Valdez v City of New York, 18 NY3d 69, 75). The issue of whether a special duty exists "`is generally a question for the jury'" (Santaiti v Town of Ramapo, 162 AD3d at 924, quoting Coleson v City of New York, 24 NY3d 476, 483). A special duty can arise where, as relevant here, "`the [municipality] voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally'" (Koyko v City of New York, 189 AD3d 811, 812, quoting Applewhite v Accuhealth, Inc., 21 NY3d at 426). "A municipality will be held to have voluntarily assumed a special duty where there is: `(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking'" (Koyko v City of New York, 189 AD3d at 812, quoting Cuffy v City of New York, 69 NY2d 255, 260).

Further, "[u]nder the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Kralkin v City of New York, 204 AD3d 772, 772; see McLean v City of New York, 12 NY3d 194, 203). "Discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results, whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Kralkin v City of New York, 204 AD3d at 773; see Tango v Tulevech, 61 NY2d 34, 41). Additionally, a municipality is not immune from liability based upon the exercise of discretionary authority "`unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated'" (Ferreira v City of Binghamton, 38 NY3d 298, 311, quoting Valdez v City of New York, 18 NY3d at 76).

1. Governmental Function

Here, with regard to the threshold issue of whether the County acted in a proprietary or governmental function, the plaintiffs do not dispute that Byrne was engaged in a governmental function at the time of the accident. "The function of dealing with children in need of foster care is deemed best executed by government and is undertaken without thought of profit or revenue" (Kochanski v City of New York, 76 AD3d 1050, 1052). Since Byrne was supervising visitation as part of his duties for the DSS on behalf of a child in foster care at the time of the accident, he was engaged in a governmental function. Thus, the inquiry turns to whether the County owed a special duty to the infant plaintiff.

2. Special Duty

Contrary to the County's contention, it failed to establish, prima facie, that it did not owe a special duty to the infant plaintiff.

The issue of whether a municipality owes a special duty to children placed in foster care has generally arisen in the context of actions involving children who were subjected to sexual or physical abuse while in foster care. For instance, in Bartels v County of Westchester (76 AD2d 517, 522), this Court determined that a county may be liable for physical injuries suffered by an infant in a foster home, as the county "undertook to care for the infant plaintiff, and this duty, once assumed, had to be carried out with due regard for the child's safety."

Similarly, in G.F. v Westchester County (2024 NY Slip Op 30447[U] [Sup Ct, Westchester County]), which involved allegations that a child in foster care was sexually abused, the Supreme Court determined that a county assumed a special duty to the infant plaintiff. The court explained that "[i]n contrast to its general population, the [c]ounty seized responsibility for plaintiff's care and upbringing," as the county had custody of the child in foster care and "exercised its parens patriae function to safeguard the best interests of plaintiff and had control over him during the time of the abuse" (id. at *5).

By contrast, in Weisbrod-Moore v Cayuga County (216 AD3d 1459), the Appellate Division, Fourth Department, determined that a complaint alleging that the plaintiff was subjected to sexual and physical abuse while in foster care was insufficient to allege the existence of a special duty owed by a county to the plaintiff. The court explained that the allegations in the complaint pertained specifically to the county's failure to meet its obligations to foster children pursuant to the Social Services Law, and that "`[t]he failure to perform a statutory duty, or the negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed'" (id. at 1462, quoting Estate of M.D. v State of New York, 199 AD3d 754, 757).

The circumstances of the case at bar are distinguishable from the aforementioned cases, as the infant plaintiff did not sustain injuries while in a foster home, but rather during visitation with the mother at a public location under supervision by a caseworker for the DSS. It is an issue of first impression whether the municipality assumed a special duty to the foster child in such instance. We hold that under these circumstances, a municipality may owe a special duty to the foster child.

It is well settled that a school owes a special duty to provide its students with adequate supervision, which "derives from the fact that the school, in assuming physical custody and control of the students, takes the place of the parents or guardians, and therefore acts in loco parentis" (Hauburger v McMane, 211 AD3d 715, 716; see Pratt v Robinson, 39 NY2d 554, 560; Ferguson v City of New York, 118 AD3d 849, 849-850). This special duty of a school to its students is temporary in nature and ceases once a student "has passed out of the orbit of its authority" (Pratt v Robinson, 39 NY2d at 560).

Here, the infant plaintiff was injured under circumstances analogous to a child injured on a playground while at school. At the start of the visit, the foster parent surrendered physical custody and control of the infant plaintiff to Byrne and then left the park for the duration of the visit. While the mother was present during the visit, it is undisputed that she was not the custodial parent and, indeed, was not even permitted to interact with the infant plaintiff outside the presence of the assigned caseworker. Notably, Byrne acknowledged that it was the policy and procedure of the DSS that no visit could start until an employee of the County was present to supervise, and that he was empowered to intervene if he observed anything he believed "might be inappropriate or dangerous for the child" or if the mother permitted the infant plaintiff to engage in an inappropriate activity. Therefore, the mother did not possess an unfettered degree of control over the infant plaintiff such that she could be deemed the party in physical custody of the infant plaintiff during the supervised visit. Rather, by assuming physical control over the infant plaintiff in the parking lot when the foster parent dropped off the infant plaintiff for the visit, Byrne acted in loco parentis during the visit.

Thus, the County's contention that the mother was the individual responsible for supervising the infant plaintiff is not supported by the record. Moreover, the County cannot reasonably take the position that it was entitled to rely on the mother to ensure the safety of the infant plaintiff during visitation when the mother was not permitted to have unsupervised visitation with the infant plaintiff. If the presence of a caseworker was deemed necessary to ensure that the mother acted appropriately during visitation, then it necessarily follows that the caseworker was obligated to ensure that the mother did not permit the infant plaintiff to engage in any unsafe behavior.

Consequently, we hold that the County may assume a special duty to a foster child during the course of visitation supervised by a DSS caseworker. We also determine that the County's conclusory assertions regarding the lack of a special duty were insufficient to meet its burden of establishing, prima facie, that it did not owe a special duty to the infant plaintiff (see Stevens v Town of E. Fishkill Police Dept., 198 AD3d 832, 833; Morgan-Word v New York City Dept. of Educ., 96 AD3d 1025, 1026).

3. Discretionary Conduct

Although discretionary governmental action, as opposed to ministerial governmental action, may not be a basis for liability even if a special duty exists (see Ferreira v City of Binghamton, 38 NY3d at 311-312; Kralkin v City of New York, 204 AD3d at 772-773), the County's bare assertion that Byrne's conduct was discretionary was insufficient to meet its prima facie burden, as "`a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion'" (Coleson v City of New York, 125 AD3d 436, 437, quoting Valdez v City of New York, 18 NY3d at 79).

To the extent the County contends that Byrne's conduct was discretionary because "New York State guidelines set forth by the Office of Children and Family Services" provide for "the least restrictive level of supervision necessary for children in foster care," the County's contention is improperly raised for the first time on appeal (see Shahid v City of New York, 144 AD3d 1127, 1129-1130).

Moreover, even assuming, arguendo, that the County established, prima facie, that Byrne's authority to supervise visitation was discretionary in nature, the County failed to demonstrate that such discretion "`was in fact exercised in relation to the conduct on which liability is predicated'" (Ferreira v City of Binghamton, 38 NY3d at 311, quoting Valdez v City of New York, 18 NY3d at 76). Since Byrne acknowledged that he did not observe the infant plaintiff walking up the portion of the slide intended for children to slide down prior to the accident, it cannot be said that he made a discretionary decision whether or not the infant plaintiff's behavior warranted his intervention. Thus, any exercise of discretion by Byrne during visitation bore no relation to the conduct on which liability is predicated.

Consequently, the County failed to establish, prima facie, that it was immune from liability for a claim of negligent supervision for the subject accident.

B. Proximate Causation

Generally, the adequacy of a defendant's supervision of children on a playground and whether inadequate supervision was a proximate cause of an accident are questions of fact for a jury (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d 708, 709-710). "However, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant is warranted" (id. at 710; see R.B. v Sewanhaka Cent. High Sch. Dist., 207 AD3d 607, 610).

Contrary to the County's contention, it failed to establish, prima facie, that Byrne provided adequate supervision to the infant plaintiff, or that a lack of adequate supervision was not a proximate cause of the accident (see L.S. v Massapequa Union Free Sch. Dist., 215 AD3d at 710; B.T. v Bethpage Union Free Sch. Dist., 173 AD3d 806, 808). Viewing the evidence in the light most favorable to the plaintiffs (see Rodriguez v American Airlines, Inc., 219 AD3d 948), there were triable issues of fact as to whether the infant plaintiff was engaged for an extended period of time in a dangerous activity given her young age, which warranted more heightened supervision, and if so, whether such supervision would have prevented the accident (see SM v Plainedge Union Free Sch. Dist., 162 AD3d 814, 817; DiGiacomo v Town of Babylon, 124 AD3d 828, 829). The mother testified that the infant plaintiff and her sister were playing on the big slide where the accident occurred—which was intended for older children ages 5 to 12—for approximately 10 to 15 minutes prior to the accident, and Byrne estimated that they were playing on that slide for 4 to 5 minutes. Thus, the County's evidentiary submissions were insufficient to establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it (see M.P. v Mineola Union Free Sch. Dist., 166 AD3d 953, 955).

III. Conclusion

In light of the foregoing, the County failed to establish its prima facie entitlement to judgment as a matter of law, and thus, we need not consider the sufficiency of the plaintiffs' submissions in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The parties' remaining contentions either were improperly raised for the first time in reply papers, and thus, are not properly before this Court, or are without merit.

Accordingly, the Supreme Court properly denied that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the order is affirmed insofar as appealed from.

BARROS, J.P., WARHIT and VENTURA, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with costs."

CHILD CUSTODY - WHEN BOTH PARENTS ARE AN ISSUE

MATTER OF BENJAMIN v. v. SHANTIKA W., 2022 NY Slip Op 4774 - NY: Appellate Div., 3rd Dept. 2022:

"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two daughters (born in 2010 and 2012). In early 2017, the mother and the children relocated from Ulster County to Bethlehem, Pennsylvania without the father's consent, prompting the father to file a petition seeking an initial determination on the issues of custody and parenting time. In an order entered in July 2017 upon the parties' consent, the parents were awarded joint legal custody of the children, with primary physical custody to the mother and parenting time to the father every other weekend from Friday at 8:30 p.m. through Sunday at 5:30 p.m., as well as any additional time upon which the parents could agree. In September 2019, based upon concerns over the mother's alcohol abuse, the father commenced this Family Ct Act article 6 modification proceeding seeking sole legal and primary physical custody of the children. In July 2020, while they were in the father's care for an extended period of time over the summer, the children exhibited concerning behavior, which resulted in the father amending his petition^[1] and moving, by order to show cause, for emergency relief. Given the nature of the father's allegations, Family Court conducted an emergency virtual hearing, after which it temporarily awarded the father sole legal and primary physical custody of the children and provided the mother with four hours of weekly parenting time in New York. Upon receiving temporary full custody, the father voluntarily engaged in preventative services through the Ulster County Department of Social Services, enrolled the children in mental health counseling and began a parenting class.

In September 2021, following a lengthy, virtual fact-finding hearing that concluded in June 2021, Family Court awarded the mother sole legal and primary physical custody of the children, but put numerous conditions in place, including that the mother continue the children in counseling, ensure that the children are not exposed to any acts of domestic violence, avoid intoxication "at any time that she is caring for [the] children" and "require that her local [s]ocial [s]ervices office [in Pennsylvania] open a preventative case for [the] children." As for the father, Family Court granted him six hours of biweekly, supervised parenting time with the children, as well as "access to all of the children's medical, educational records and access to any professionals providing the children with medical, educational, or counseling services." Family Court directed that the father shall pick the children up at the mother's home in Pennsylvania and return the children to the mother's home at the end of his parenting time. The father appeals,^[2] arguing that Family Court's determination is not supported by a sound and substantial basis in the record.^[3]

The parties do not dispute that there has been a change in circumstances since entry of the July 2017 order and, thus, we focus our inquiry on whether Family Court's custody and parenting time determinations serve the best interests of the children (see Matter of Christie BB. v Isaiah CC., 194 AD3d 1130, 1131 [2021]; Matter of Clayton J. v Kay-Lyne K., 185 AD3d 1243, 1244 [2020]). In determining the children's best interests, Family Court must consider, among other factors, "the quality of the parents' respective home environments, the need for stability in the children's lives, each parent's willingness to promote a positive relationship between the children and the other parent and each parent's past performance, relative fitness and ability to provide for the children's intellectual and emotional development and overall well-being" (Matter of Jessica HH. v Sean HH., 196 AD3d 750, 753 [2021] [internal quotation marks, brackets and citations omitted]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). We accord "great deference to Family Court's factual findings and credibility determinations, which will not be disturbed if they have a sound and substantial basis in the record" (Matter of Richard GG. v M. Carolyn GG., 169 AD3d 1169, 1171 [2019]; see Matter of Charity K. v Sultani L., 202 AD3d 1346, 1347-1348 [2022]).

This case presents one of those difficult instances in which Family Court was "faced with the most imperfect of choices" in determining which custodial arrangement served the children's best interests (Hanna v Hanna, 267 AD2d 903, 904 [1999], lv dismissed 94 NY2d 943 [2000]). To start, the parents' palpable animosity toward one another rendered an award of joint legal custody infeasible (see Matter of Jennifer D. v Jeremy E., 172 AD3d 1556, 1557 [2019]; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008]). Additionally, the evidence credited by Family Court established that there were genuine concerns regarding each parent (see Matter of Gary J. v Colleen L., 288 AD2d 720, 721 [2001]). Indeed, the evidence demonstrated that, among other things, the mother struggled with issues of alcohol abuse, failed to acknowledge or address the children's sexualized behavior and had a history of violating court orders. As for the father, Family Court credited testimony that, more than 30 years ago, during his teenage years, the father repeatedly engaged in sexual acts with his niece when she was under the age of 10.

Notwithstanding the mother's issues, the evidence demonstrated that the mother has been the children's primary caregiver and that she fiercely loves her children. Additionally, as set forth in a letter from a protective services caseworker in Northampton County, Pennsylvania, where the mother resides, the mother's home was clean and did not present any apparent safety concerns. Furthermore, the children have relatives in Pennsylvania , including their maternal half sibling and maternal grandmother, who live nearby and have provided a supportive environment for the children. Finally, although Family Court did not conduct a Lincoln hearing, various witnesses testified to the children's desire to live with the mother.^[4] Deferring to Family Court's credibility determinations, given the foregoing evidence, there is a sound and substantial basis in the record to support Family Court's determination that an award of sole legal and primary physical custody to the mother was in the best interests of the children (see Matter of Frize v Frize, 266 AD2d 753, 755 [1999]).

We, however, reach an opposite conclusion with respect to Family Court's determination to limit the father to six hours of supervised parenting time in Pennsylvania every other week. In so concluding, we emphasize that "[t]he best interests of the children generally lie with a healthy, meaningful relationship with both parents" (Matter of Williams v Patinka, 144 AD3d 1432, 1433 [2016]; see Matter of Spoor v Carney, 149 AD3d 1209, 1211 [2017]) and that expanded parenting time is generally favored, unless there is proof that such parenting time would be inimical to the welfare of the children (see Matter of Beeken v Fredenburg, 145 AD3d 1394, 1396 [2016]; Matter of Fish v Fish, 112 AD3d 1161, 1162-1163 [2013]).

Here, Family Court's determination to limit the father's parenting time was based entirely on the sexual abuse allegations made against the father by his niece, which occurred nearly 30 years ago. However, there was no evidence establishing that the father had any inappropriate sexual contact with either of the children (see Matter of Johnson v Johnson, 13 AD3d 678, 678-679 [2004]). Nor was there any evidence that the father had engaged in or been accused of engaging in sexual misconduct toward the children's half siblings, both of whom had previously lived with the father for a period of time.

Additionally, none of the parties advocated for supervised parenting time to the father or otherwise opposed a schedule of expanded parenting time (see generally Matter of Beeken v Fredenburg, 145 AD3d at 1397). Indeed, although the mother introduced evidence of the prior sex abuse allegations during her case-in-chief, she argued during summation that Family Court should keep in place the parenting time provisions of the prior July 2017 consent order, which afforded the father parenting time every other weekend from Friday at 8:30 p.m. through Sunday at 5:30 p.m. and at such other times as the parties could agree (see Matter of Carter v James, 4 AD3d 640, 641 [2004]). The record established that the mother knew of the sexual abuse allegations against the father prior to agreeing to the July 2017 consent order. The attorney for the children in Family Court argued for an award of primary physical custody to the father and supervised parenting time to the mother, arguing that there were concerns about the mother's ability to parent the children and that the children were doing well in the father's care. Interestingly, despite ultimately concluding that the father's parenting time with the children must be supervised, Family Court left the children in the father's unsupervised care over the summer of 2021 — that is, from the conclusion of the fact-finding hearing in June 2021 through the time Family Court entered an order on its decision in September 2021.^[5]

Further, the record contains evidence of the father's demonstrated ability to provide for the children's well-being. As established by the evidence, after the children exhibited concerning behavior, the father took overt and appropriate steps to address such behavior by, among other things, engaging in preventative services with the Ulster County Department of Social Services, enrolling the children in counseling and establishing boundaries with the children's online activity. Child protective caseworkers testified on the father's behalf and stated that they did not have any concerns regarding the father.

Considering all of the foregoing, we find that the record lacks a sound and substantial basis to support Family Court's determination to provide the father with only six hours of biweekly, supervised parenting time (cf. Matter of Frize v Frize, 266 AD2d at 757; compare Matter of Alan U. v Mandy V., 146 AD3d 1186, 1188 [2017]; Matter of Susan GG. v James HH., 244 AD2d 731, 734 [1997]). We therefore modify Family Court's order by reversing so much thereof as addressed the father's parenting time. Although we are empowered to independently review the record and make determinations regarding parenting time (see generally Matter of Eldad LL. v Dannai MM., 155 AD3d 1336, 1343 [2017]), under the circumstances of this case, we find that the matter must be remitted to Family Court to, upon further proceedings,^[6] structure a meaningful parenting time schedule in the best interests of the children (see Matter of Jill Q. v James R., 185 AD3d 1106, 1110 [2020]). In so remitting, we encourage Family Court to consider the type of parenting time warranted by the record evidence (e.g., therapeutic visitation, supervised parenting time, unsupervised parenting time, etc.), the amount, duration and location of such parenting time (e.g., a graduated schedule, overnight parenting time in New York, etc.) and any other provisions that would develop and/or promote a healthy and meaningful relationship between the father and the children (e.g., reasonable phone/video contact, written communication, etc.).

Garry, P.J., Egan Jr., Aarons and McShan, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as provided for petitioner's parenting time; matter remitted to the Family Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

[1] The father had previously amended his petition in January 2020.

[2] The father's notice of appeal purports to appeal from an "order" entered on September 2, 2021. However, Family Court's decision, not order, was entered on that date. An order upon the decision was ultimately entered on September 27, 2021. Inasmuch as an appeal does not lie from a decision (see CPLR 5512 [a]; Family Ct Act § 1112 [a]), we will, in an exercise of our discretion, treat the notice of appeal as validly bringing an appeal from the September 27, 2021 order (see CPLR 5520 [c]; Matter of Angela F. v Gail WW., 146 AD3d 1248, 1250 n 2 [2017]).

[3] Unlike the attorney for the children in Family Court, who argued for an award of primary physical custody to the father and supervised parenting time to the mother, the attorney for the children on appeal urges this Court to affirm Family Court's determination to award the mother sole legal and primary physical custody, with supervised parenting time to the father.

[4] Although none of the attorneys, including the attorney for the children, requested a Lincoln hearing and although Family Court is not mandated to conduct one (see Matter of Daniel XX. v Heather WW., 180 AD3d 1166, 1168 [2020]; Matter of Jessica B. v Robert B., 104 AD3d 1077, 1078 [2013]), the best practice here would have been for Family Court to conduct a Lincoln hearing.

[5] Moreover, following testimony from the father's niece in February 2021 regarding the allegations of past sexual abuse, Family Court did not alter its temporary order awarding the father sole legal and primary physical custody of the children.

[6] Such further proceedings could include, among other things, Lincoln hearings or additional proof from a qualified professional relating to the children's well-being."

CHILD CUSTODY - CONSEQUENCES OF "BAD PARENTING"

In this case, the father, allegedly in recovery from substance abuse, still is dealing with anger, a luxury he cannot afford if he wants unsupervised visitation. 

MATTER OF NICOLE J. v. JOSHUA J., 2022 NY Slip Op 3780 - NY: Appellate Div., 3rd Dept. 2022:

"CLARK, J.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a child (born in 2018). Following the parties' separation in March 2020, the mother commenced a Family Ct Act article 6 proceeding, seeking an initial custody determination. The father subsequently sought a temporary order granting him supervised parenting time with the child,^[1] and, by temporary order entered in December 2020, Family Court ordered that the father was to have supervised parenting time once a week for a period of up to six hours, with such parenting time to be supervised by a certain individual. Less than a week later, following an incident during the father's supervised parenting time with the child, the mother commenced a Family Ct Act article 8 proceeding, alleging that the father had committed the family offenses of disorderly conduct, harassment in the first or second degree, menacing in the second or third degree and/or attempted assault. Following a hearing on the mother's petitions, Family Court awarded the mother sole legal and primary physical custody of the child and directed that the father have supervised parenting time for "at least two hours" per week at the Parents as Leaders Resource Center, along with phone or electronic communication with the child and access to the child's educational, health care and religious records. Because the initial supervisor was no longer willing to supervise the father's parenting time, Family Court designated the child's maternal uncle as the supervisor, but stated that the parties could agree to an alternate supervisor from time to time. As for the mother's family offense petition, Family Court found that the father committed the family offense of disorderly conduct and, consequently, issued an order of protection in favor of the child and the mother. The father appeals.^[2]

Contrary to the father's contention, Family Court's determination to award the mother sole legal custody of the child has a sound and substantial basis in the record. Although joint legal custody is "an aspirational goal in every custody matter" (Matter of Clupper v Clupper, 56 AD3d 1064, 1065 [2008]; see Matter of Elizabeth B. v Scott B., 189 AD3d 1833, 1835 [2020]), joint legal custody may not be feasible or appropriate in cases where the parents are unable to "effectively and directly communicate with one another to care for the child's needs" (Matter of David J. v Leeann K., 140 AD3d 1209, 1211 [2016]; see Matter of Amanda YY. v Faisal ZZ., 198 AD3d 1125, 1126 [2021]). "We accord great deference to Family Court's factual findings and credibility determinations given its superior position to observe and assess the witnesses' testimony and demeanor firsthand, and will not disturb its custodial determination if supported by a sound and substantial basis in the record" (Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515 [2015] [citations omitted]; see Matter of Derek KK. v Jennifer KK., 196 AD3d 765, 767 [2021]).

The hearing evidence demonstrated that the father has perpetrated multiple, escalating acts of physical domestic violence against the mother. Additionally, the evidence reflected that the parties' attempts to communicate routinely deteriorated into argument and that they have been unable to communicate about, or for the good of, the child. Considering this evidence, we find that a sound and substantial basis exists in the record to support Family Court's determination that an award of sole legal custody to the mother is in the child's best interests (see Matter of Nicole V. v Jordan U., 192 AD3d 1355, 1357-1358 [2021]; Matter of Samantha GG. v George HH., 177 AD3d 1139, 1140-1141 [2019]; Matter of Adam E. v Heather F., 151 AD3d 1212, 1214 [2017]).

The father also argues that he should have been granted unsupervised and more expansive parenting time. "Generally, Family Court must fashion a parenting time schedule that accords the noncustodial parent frequent and regular access to the child[], unless there is evidence that frequent parenting time would be contrary to the child[]'s best interests" (Matter of Nicole Y. v Joshua X., 183 AD3d 996, 997 [2020]; see Matter of Aida B. v Alfredo C., 114 AD3d 1046, 1049 [2014]). However, Family Court may order supervised parenting time if it determines that the "parent `is either unable or unwilling to discharge his or her parental responsibility properly'" and that, therefore, unsupervised parenting time would be "detrimental to the child's safety" (Matter of Taylor v Fry, 63 AD3d 1217, 1218-1219 [2009], quoting Matter of Kathleen OO., 232 AD2d 784, 786 [1996]; see Matter of Damon B. v Amanda C., 195 AD3d 1107, 1108 [2021]).

The evidence established that, in addition to perpetrating acts of domestic violence against the mother, the father frequently became frustrated with the child and would yell and curse at her. For example, during the incident that prompted the mother to file the instant family offense petition, the father had difficulty managing the then two-year-old child's desire to play with toys in an adjoining room. The father "yell[ed]" and, according to the initial supervisor, "grabbed [the child] by the arm and threw her on a chair. .. pretty aggressively," causing her to cry for an extended period of time. The father then cursed at the child, called her names and likened her to her mother in a disparaging way. There was evidence that the father had been similarly impatient and physically aggressive with the mother's other children. Further, the interim report resulting from a Family Ct Act § 1034 investigation, which was admitted into evidence, stated that there were child protective concerns related to the father's temper.

As for the father's alleged substance abuse, the father admitted that he had previously been addicted to heroin but asserted that he had been sober for years and was engaged in multiple forms of treatment. However, the father did not offer treatment records or any other documentation to support his claim of sobriety, despite having multiple opportunities to do so (see Matter of Vincente X. v Tiana Y., 154 AD3d 1113, 1114 [2017]; Matter of Menhennett v Bixby, 132 AD3d 1177, 1180 [2015]). Family Court, having had the opportunity to hear the father's testimony and evaluate his credibility, found the father to be untruthful and instead credited the testimony of those who were familiar with the father's appearance and behavior while he was using heroin.

Considering all of the foregoing evidence, we find that there is a sound and substantial basis in the record to support Family Court's determination to direct supervised parenting time for the safety of the child (see Kimberly C. v Christopher C., 155 AD3d 1329, 1335-1336 [2017]; Matter of Adam E. v Heather F., 151 AD3d at 1214-1215), as well as its determination to grant the father "at least two hours" of supervised parenting time per week at the Parents as Leaders Resource Center (see Matter of Carin R. v Seth R., 196 AD3d 776, 778 [2021]). Although two hours of weekly parenting time is limited, Family Court allowed for additional parenting time as the parties could agree (see Matter of Derek KK. v Jennifer KK., 196 AD3d at 768). Further, given certain evidence demonstrating that she would not be a suitable supervisor, we discern no abuse of discretion in Family Court's determination to reject the father's proposal that the child's paternal aunt supervise parenting time (see Matter of Vincente X. v Tiana Y., 154 AD3d at 1115; see generally Matter of Carl KK. v Michelle JJ., 162 AD3d 1273, 1275 [2018]).

Turning to the mother's family offense petition, we agree with the father that there was insufficient evidence to establish that he possessed the requisite culpable mental state for disorderly conduct — that is, the "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" (Penal Law § 240.20; see Family Ct Act § 812 [1]). "[C]ritical to a charge of disorderly conduct is a finding that [a respondent's] disruptive statements and behavior were of a public rather than an individual dimension" (People v Baker, 20 NY3d 354, 359 [2013]; see Matter of Cassie v Cassie, 109 AD3d 337, 341-342 [2013]). Here, the subject incident took place in a private room with a partially closed door at a location dedicated to visitation with young children and there was no evidence as to the number of people near the room at the time of the incident (see generally People v Baker, 20 NY3d at 360). Although an employee of the Parents as Leaders Resource Center checked in on the room shortly after the incident, there was no evidence as to that employee's response to the incident. Accordingly, Family Court erroneously concluded that the father committed the family offense of disorderly conduct (see Matter of Smith v Morrison, 196 AD3d 772, 774 [2021]; Matter of Sharon D. v Dara K., 130 AD3d 1179, 1181 [2015]).

Nonetheless, this Court may "independently review the record to determine whether a fair preponderance of the evidence supports a finding that the father committed one of the qualifying family offenses" (Matter of Debra SS. v Brian TT., 163 AD3d 1199, 1203-1204 [2018]; see Matter of Maureen H. v Bryon I., 140 AD3d 1408, 1410 [2016]). Upon exercise of that review power, we find that the proof established that the father committed the family offense of harassment in the second degree and that he is not entitled to a justification defense. As relevant here, "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person. .. [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1]; see Family Ct Act § 812 [1]). However, "[a] child's caretaker may use reasonable physical force for the purpose of discipline" (Matter of Anthony J. v David K., 70 AD3d 1220, 1221 [2010]; see Penal Law § 35.10 [1]). "In determining whether a parent's belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary" (People v Kearns, 56 AD3d 1047, 1049 [2008] [internal quotation marks and citations omitted], lv denied 12 NY3d 784 [2009]).

As discussed, the evidence demonstrated that the father used an "aggressive" amount of physical force to grab the two-year-old child by her arm and "thr[o]w" her in a chair, after which he yelled profane and disparaging insults at the child. In our view, the father's conduct and language toward the child — which did not constitute reasonable disciplinary measures — evince an intent to alarm the child (compare Matter of Kristie GG. v Sean GG., 168 AD3d 25, 29 [2018]; Matter Anthony J. v David K., 70 AD3d at 1221). Accordingly, we find that the proof adduced at the hearing sufficiently established, by a preponderance of the evidence, that the father committed the family offense of harassment in the second degree (see Penal Law § 240.26 [1]; Family Ct Act § 812[1]).

Turning lastly to his claim of ineffective assistance of counsel, the father has failed to demonstrate the absence of strategy or legitimate explanations for counsel's alleged shortcomings, including counsel's failure to marshal documentary proof of the father's purported sobriety, and, viewing the record in its totality, we are satisfied that he was provided meaningful representation (see Matter of Jeffrey VV. v Angela VV., 176 AD3d 1413, 1417 [2019]; Matter of Brent O. v Lisa P., 161 AD3d 1242, 1246-1247 [2018]; Matter of Bennett v Abbey, 141 AD3d 882, 884-885 [2016]; Matter of Robinson v Bick, 123 AD3d 1242, 1242-1243 [2014]; Matter of Elizabeth HH. v Richard II., 75 AD3d 670, 671 [2010]).

Egan Jr., J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.

ORDERED that the order is affirmed, without costs.

[1] As a result of a no-contact order of protection issued in favor of the mother and the child, the father had not had any contact with either since March 2020.

[2] The attorney for the child, like the mother, argues for affirmance."

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."

ANOTHER COVID AND CHILD CUSTODY MATTER

Reading between the lines here, there is a pending motion to relocate and if granted, the non-custodial parent with supervised visitation will have significant parenting time concerns.

A.S. v. H.R., NYLJ June 12, 2020, Date filed: 2020-06-05,  Court: Supreme Court, New York, Judge: Justice Matthew Cooper, Case Number: 306655/2011:

"Following a custody trial in this high-conflict almost ten-year divorce case, the court awarded full custody of the parties’ child to the plaintiff-father and granted the defendant-mother supervised access. The decision was recently affirmed by the Appellate Division in S.A. v. R.H., 181 AD3d 520 [1st Dept 2020]. Pending now before the court is a motion by plaintiff to relocate permanently with the child to California and a motion by defendant to modify the custody and access order. In connection with these applications, the court appointed a forensic psychiatrist to conduct a forensic evaluation. The evaluation has yet to be completed.

By an order dated March 24, 2020, the court granted plaintiff permission to travel with the child to California on a temporary basis so that the child could visit with his paternal grandparents and observe the Passover holiday. In light of the COVID-19 pandemic and concerns of exposure to the virus and domestic travel, the order directed plaintiff to take certain precautions, including the use of a private airplane, and to return the child to New Jersey on or before April 12, 2020, with the possibility of an extension of the temporary relocation upon a “showing of good cause.”

The court subsequently issued two additional orders: 1) an order dated April 10, 2020, extending the return date to May 4, 2020; and 2) an order dated May 1, 2020, permitting plaintiff to make a motion, no later than May 7, 2020, to extend the child’s time in California. On May 6, 2020, plaintiff, by Order to Show Cause, moved to further extend the time during which the child could remain in California. Plaintiff’s motion is supported by the Attorney for the Child but vigorously opposed by defendant. At this time, the child remains in California.

The Attorney for the Child submitted an Affidavit in Support of plaintiff’s Order to Show Cause on May 11, 2020. It is his contention, amongst others, that defendant’s supervised access was already very limited and that returning the child to the Tri-state area would expose the child to unnecessary risks.

It is well-settled that “modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency” (Shoshanah B. v. Lela G., 140 A.D3d 603, 603 [1st Dept 2016]). A temporary custody determination shall only be made when exigent circumstances exist (Acquard v. Acquard, 244 AD2d 1010, 1010 [4th Dept 1997]; affd Joseph M. v. Lauren J., 3 NYS3d 285, 285 [Sup Ct, NY County 2014]).

Here, a hearing was held via telephonic conference on May 13, 2020. Counsel for both parties as well as the Attorney for the Child were present on the call and took the opportunity to argue orally. There are numerous exigent circumstances present, some of which are unique to this case. Primarily, the Tri-state area remains the epicenter of the nation’s COVID-19 crisis while California remains less affected. Moreover, the New York City and New Jersey stay-at-home orders have rendered it impossible, at present, for defendant to exercise her limited access because the supervisor assigned to the case is not able or willing to expose herself to the possibility of contracting the virus.

Conversely, the court is cognizant of the fact that plaintiff packed up most of the child’s belongings when he initially traveled to California. This, coupled with other facts about plaintiff’ conduct, suggest that it was never his intention to return with the child to where he now lives in New Jersey but, instead, that he was exploiting the current COVID-19 situation and using the temporary order as a guise under which to accomplish his desire for permanent relocation.

While the court is hesitant to reward plaintiff for his apparent deception and less than forthright behavior, plaintiff’s intention is not the primary factor to be considered. As in all such matters, it is the child’s best interests that come first and foremost (S.A. v. R.H., 181 AD3d at 520).

In weighing the risks against the benefits of requiring plaintiff to return with the child to New Jersey, the court must conclude, on this particular set of facts, that protecting the child’s health outweighs any concerns about any possible interference with defendant’s access with the child. Considering that defendant’s minimal, supervised visitation is currently impracticable, with the supervisor being unable to conduct face-to-face parental access sessions, it cannot be said that defendant’s access is being impeded by the child’s continued presence in California. This is especially so inasmuch as defendant is having almost daily virtual parental access while the child remains in California. If the child were to return to New Jersey now, defendant’s access under current circumstances would continue to be virtual.

The good news concerning the COVID-19 health emergency is that situation has improved in the Tri-state region to the point that restrictions are now beginning to be lifted. It is. of course, not the place of a court to evaluate the level of danger posed by a virus, that is best done by the executive branch guided by expert medical advice. The court, in turn, will be guided by those executive decisions. The governors of both New York and New Jersey either have or are poised to issue directives that will greatly ease the restrictions placed on travel and activities. The court will therefore assume that by July 8, 2020, which is one full month from the date of this decision, neither New York City not New Jersey will be subject to strict stay-at-home orders. Unser this scenario, the reduction of risk will be sufficiently reduced so as to require plaintiff to return the child to New Jersey and thereby allow defendant to resume in-person supervised access in New York City."