MASSACHUSETTS LAW - VIRTUAL VISITATION

THADDEUS v. SECRETARY OF THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, 101 Mass. App. Ct. 413 - Mass: Appeals Court 2022:

"Present: Meade, Englander, & Grant, JJ.

Department of Children & Families. Minor, Visitation rights, Care and protection. Parent and Child, Care and protection of minor. Due Process of Law, Care and protection of minor. Moot Question.

This court exercised its discretion to reach a challenge to an interim policy adopted by the Department of Children and Families (department) during the first several months of the COVID-19 pandemic, limiting in-person visitation between parents and their children in department custody and instead requiring, in most cases, "virtual visitation" by video conference, where, although the plaintiffs had ceased to have an ongoing personal stake in the controversy, the issue was of public importance, persisted for other parents with children in department custody, and was likely to evade appellate review in the future. [417-419]

In a civil action challenging an interim policy adopted by the Department of Children and Families (department) during the COVID-19 pandemic, the Superior Court judge did not err in denying the defendants' motion to dismiss based on the pendency of prior actions in the Juvenile Court, where the issues raised in the Juvenile Court actions were not the same as those raised in the Superior Court action, in that in the underlying Juvenile Court actions, the plaintiffs sought reinstatement of in-person visitation as an interim measure while their care and protection claims were pending, whereas in the Superior Court action, the plaintiffs sought a declaration that the department's practices restricting in-person visitation were unlawful under statutory and constitutional law. [419-420]

An interim policy adopted by the Department of Children and Families (department) during the first several months of the COVID-19 pandemic, limiting in-person visitation between parents and their children in department custody and instead requiring, in most cases, "virtual visitation" by video conference, did not terminate the rights of the plaintiffs, who had children in department custody at the time the policy was implemented, to visit their children within the meaning of G. L. c. 119, § 35, where the plaintiffs' right to visit with their 414*414 children was not absolute, and where the department's discretion to control visits included the ability to direct that visitation take place virtually in circumstances in which in-person contact posed a significant health risk to parents, children, and the various adults who enabled such contact [420-424]; further, principles of due process did not entitle the plaintiffs to a predeprivation hearing before the department halted in-person visitation, where the private liberty interest at stake was limited, where the plaintiffs had available to them care and protections actions in the Juvenile Court in which they could have challenged the change to virtual visitation, and where the government's interest in temporarily changing to virtual visitation was very strong, as was its interest in doing so quickly [424-426].

ENGLANDER, J.

The plaintiffs challenge a policy adopted by the Department of Children and Families (department) during the first several months of the COVID-19 pandemic, which limited in-person visitation between parents and their children in department custody, instead requiring (in most cases) video conferences or "virtual visitation." The plaintiffs are six parents whose children were subject to care and protection proceedings and in department custody when the pandemic began, as well as one similarly situated child. The plaintiffs claim that they have statutory and constitutional rights to parent-child visits in person, and that the department violated those rights by implementing its virtual visitation policy and by not first obtaining a court order. In proceedings in the Superior Court, a first judge denied the plaintiffs' request for a preliminary injunction, but then a second judge (motion judge) declined to dismiss the case, ruling (1) that the claims presented "need not be dismissed for mootness"; (2) that Mass. R. Civ. P. 12(b)(9), as amended, 450 Mass. 1403 (2008), did not require dismissal; and (3) that the plaintiffs had stated claims that survived scrutiny under Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974). In response to a joint motion by the parties, the motion judge then reported his order to this court, 415*415 under Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996).^[4]

For the reasons that follow, we reach the merits of the plaintiffs' claims, and rule that those claims fail as a matter of law. While visits between parents and children in department custody must ordinarily be in person, the circumstances in the spring of 2020 were far from ordinary. It was within the department's discretion to adopt a policy, for that time, that favored parental contact by video conference and sharply limited in-person visits. Nor, under the circumstances, was the department required to secure court approval in advance. We accordingly remand the matter with directions to dismiss the case.

Background. As indicated, the plaintiffs in this action are parents, and one child, who were involved in care and protection proceedings in the Juvenile Court when the pandemic began. All of the children at issue were in department custody and attending in-person visits with their parents at that time.

In March of 2020, the department ended in-person visitation for all plaintiffs. In early April, the department issued "Interim Guidance for DCF Supervised Visitation Providers" and "Guidelines for Parent-Child Visitation During COVID-19 Outbreak" (collectively, interim policy). The interim policy stated:

"The novel coronavirus, COVID-19, poses an unprecedented challenge to the day-to-day operations of the [department] and the children and families we serve. In order to mitigate the spread of COVID-19 during this state of emergency, we will need to be innovative in the ways parents and children can maintain contact and connection with one another, while limiting in-person interactions as much as possible."

The interim policy accordingly "encourag[ed] video conference visitation for parents and children whenever possible," and stated that in-person visits would occur only if "needed," and if approved by department supervisors or managers. The interim policy also identified precautionary measures that the department should follow in the event of such in-person visitation.

After the department ceased in-person visitation for all the plaintiffs in March of 2020, several plaintiffs submitted requests 416*416 to the department to reinstate in-person visitation; the department denied their requests. Two parents also sought relief, separately, in the Juvenile Court, but the Juvenile Court judges also declined to reinstate in-person visitation.

On May 29, 2020, the plaintiffs commenced this action in the Superior Court, asserting two causes of action: one statutory and one constitutional. The first cause of action alleged that the department had "terminated" the plaintiffs' visitation, in violation of G. L. c. 119, § 35. The second alleged that the department had violated the plaintiffs' due process rights by denying them visitation without first obtaining a court order. The plaintiffs also filed a motion for injunctive relief, which a Superior Court judge denied in June of 2020.

In late June 2020, the department amended its policy to "provide guidelines to safely resume in-person Family Time for children" in its custody (amended policy). While it approved the resumption of in-person family time, the amended policy also stated that "Virtual Family Time can support and supplement in-person Family Time and is encouraged when in-person Family Time cannot occur."^[5] In-person visitation had resumed for all plaintiffs by August of 2020.

In September of 2020 the defendants moved to dismiss, arguing that (1) the complaint was moot because the interim policy had been superseded and in-person visitation had resumed, (2) the complaint should be dismissed pursuant to rule 12(b)(9) because the plaintiffs had pending care and protection proceedings before the Juvenile Court, and (3) the plaintiffs had failed to state a claim. The motion judge denied the motion. As to mootness, he reasoned that "the issue ... may be repeated in regard to either these Plaintiffs in the future or any individuals engaged with the Department." He also ruled that dismissal was not required under rule 12(b)(9), and that the complaint sufficiently stated a claim upon which relief could be granted.

Upon joint motion of the parties, the motion judge reported his decision to this court under rule 64. On appeal, the defendants filed affidavits with this court averring that, although some of the plaintiffs were still subject to ongoing care and protection proceedings, all plaintiffs had been reunited with their respective 417*417 child or parent, or parental rights had been terminated,^[6] such that visitation rights were no longer an issue. In response, the plaintiffs filed affidavits from attorneys for the Committee for Public Counsel Services (CPCS) averring that the department continued to limit some CPCS clients (not the plaintiffs) to virtual contact with their children. The CPCS attorneys noted that the department had not sought a court order to authorize this virtual contact, and that in these instances the department had imposed virtual contact for reasons unrelated to the pandemic.

Discussion. 1. Mootness. The defendants first argue that this appeal should be dismissed as moot. We agree that the case likely is moot as to these seven plaintiffs, but we nevertheless exercise our discretion to consider the issues raised.

A case is moot when the party seeking relief "ceases to have a personal stake" in the case, such that the "court can order no further effective relief" (quotations and citations omitted). Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 816-817 (2019), cert. denied, 140 S. Ct. 858 (2020). Here, none of the plaintiffs require visitation any longer. Moreover, the interim policy is no longer in effect.^[7] While it is true that several of the plaintiffs have ongoing care and protection cases, where the subject children have been returned to the care of their parents the suggestion that remote visitation may be imposed on these particular plaintiffs in the future is tenuous, and likely not sufficient in itself to create a concrete dispute.^[8] And mere disagreement over the scope of the department's authority — without an ongoing personal stake in the controversy — is not enough to survive a mootness challenge. See Lynn v. Murrell, 489 Mass. 579, 583 (2022) (recognizing mootness of dispute over validity of rescinded emergency COVID-19 orders).

Mootness, however, is not a jurisdictional bar in our courts. See 418*418 Lynn, 489 Mass. at 583. We may exercise our discretion to consider a moot case upon consideration whether

"(1) the issue was fully argued on both sides; (2) the question was certain, or at least very likely, to arise again in similar factual circumstances; (3) where appellate review could not be obtained before the recurring question would again be moot; and (4) most importantly, the issue was of public importance."

Ott v. Boston Edison Co., 413 Mass. 680, 683 (1992). Here, the issue has been briefed, and ably argued, by both sides. Furthermore, the issue — the department's ability to limit parents' contact with children in department custody solely to virtual means — is one of public importance.

Thus, we turn next to whether this issue is likely to arise again in similar circumstances. The defendants argue that the department is unlikely again to substitute virtual contact for in-person visitation, given public health advancements and the declared end to the COVID-19 state of emergency. But while we acknowledge that the department is unlikely to reinstate the interim policy exactly as written, the issue whether the department may lawfully limit contact to virtual contact persists for other parents with children in department custody, now and in the future. The plaintiffs have submitted affidavits indicating that the department continues to restrict some families solely to virtual contact for reasons unrelated to the pandemic, such as geographic distance or lack of available staff. The defendants counter that such actions are contrary to department policy, and can be addressed in pending individual proceedings in the Juvenile Court; the defendants, however, do not deny that such actions are occurring.

Furthermore, the question of the lawfulness of virtual visitation is likely to evade appellate review in the future, as this case illustrates. Visitation issues — and other temporary custody matters in care and protection proceedings — generally will be resolved by the time the matter is heard on appeal.^[9] In recognition of this practical reality, the Supreme Judicial Court has previously opted to consider moot issues in similar contexts. See Care & 419*419 Protection of Walt, 478 Mass. 212, 219 (2017) (considering moot issues regarding seventy-two hour hearings); Guardianship of V.V., 470 Mass. 590, 592 (2015) ("given the short time periods in which guardianship matters are often decided and the fluidity of the proceedings even after an appointment of a guardian ..., it is an issue that can easily evade appellate review in the ordinary course").

2. Rule 12(b)(9). The defendants next argue that the plaintiffs' claims should be dismissed pursuant to rule 12(b)(9), because the plaintiffs had ongoing care and protection proceedings in the Juvenile Court. Again, we disagree.

Rule 12(b)(9) allows defendants to seek dismissal due to the "[p]endency of a prior action in a court of the Commonwealth." The purpose of rule 12(b)(9) is to concentrate the adjudication of a claim or "action" in a single court, and to prevent parties from "claim-splitting," or pursuing the same claims in two separate actions. Lyons v. Duncan, 81 Mass. App. Ct. 766, 770-771 (2012). For a rule 12(b)(9) defense to succeed, "the parties and the issues [must be] the same as those in a prior action still pending." Lyons, supra. Here, it is true that there were previously pending care and protection cases, in the Juvenile Court, that were addressing the issue of custody of the children. That court was available to adjudicate the rights of individual parents to visit with their children in department custody.

Our inquiry, however, does not end there. Consideration whether the same issues were raised in the Juvenile Court and Superior Court requires a closer examination of the nature of the claims asserted and the relief sought in each action. In the underlying Juvenile Court proceedings, some plaintiffs sought reinstatement of in-person visitation, as an interim measure while the care and protection claims were pending. The Superior Court action, on the other hand, does not seek merely to reinstate in-person visitation, but broadly seeks a declaration that the department's practices restricting in-person visitation were and are unlawful under statutory and constitutional law.

The Superior Court action thus is different in nature, raises distinct claims, and seeks distinct remedies from those involved in the individual care and protection proceedings. We need not decide whether the plaintiffs could have raised some of their Superior Court claims in the care and protection proceedings (indeed, we assume they could have), as they could not have raised all of them. See Gold Star Homes, LLC v. Darbouze, 420*420 89 Mass. App. Ct. 374, 377-378 (2016) (permitting second action in Housing Court because summary process counterclaim not available in Land Court); Conant v. Sherwin L. Kantrovitz, P.C., 29 Mass. App. Ct. 998, 999 (1990) (permitting second action in Boston Municipal Court because Probate and Family Court had no jurisdiction over contract claim). As one example, the Juvenile Court does not have jurisdiction to grant the declaratory judgment that the plaintiffs now seek.^[10] See G. L. c. 231A, § 1. The judge did not err by denying the defendants' rule 12(b)(9) motion.

3. The interim policy. Turning to the merits, we consider whether the plaintiffs' complaint has stated a viable claim for relief. The questions before us are whether the department may limit in-person visitation for children in its custody, even temporarily, and if so, what limitations may or may not exist on the department's power to do so. We review a decision on a motion to dismiss de novo. See Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). A complaint must contain "factual allegations plausibly suggesting ... an entitlement to relief" (quotation and citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). The plaintiffs have failed to state such a claim.

a. Section 35 claim. The plaintiffs first argue that pursuant to G. L. c. 119, § 35, they are entitled to "visit[]" with their children, and that the department "terminated" their visitation rights when it shifted to virtual visitation in March of 2020. The basic premise of the plaintiffs' position is that "visit" means in-person contact between parent and child; virtual visitation, by video conference or similar means, thus does not satisfy their statutory rights. For its part, the department contends that the plaintiffs' rights (whatever their scope) do not mandate in-person visitation, and in any event, certainly do not mandate in-person visitation during a worldwide pandemic.

Our analysis accordingly must begin by defining the statutory 421*421 right at issue. As to each of the plaintiffs, a judge has already granted custody to the department through an existing care and protection proceeding. Under G. L. c. 119, § 21, "[c]ustody" is a defined term that carries with it a list of powers, including the power to "control visits to a child." Accordingly, it is clear that whatever visitation right a parent retains under such circumstances, that right is not absolute. The department "control[s]" such visits, which must include the power to determine, reasonably, the time, place, manner, and frequency of such visits.

Parents' rights to visit with their children while in department custody were recognized by the Supreme Judicial Court in Custody of a Minor (No. 2), 392 Mass. 719, 725-726 (1984). In that case a judge had granted the department permanent custody of a child, and thereafter had terminated the parents' visitation rights. See id. at 720. The court held that the department's power to control visits was "modified" by G. L. c. 119, § 35, which the court read to grant "parents the right to visit their children if `the welfare of the child and the public interest will not be injured'"^[11] (citation omitted). Id. at 725-726. The court went on to note that "termination of all visitation rights" was "a ruling of such significance" that, before doing so, a judge must "make specific findings demonstrating that parental visits will harm the child or the public welfare." Id. at 726.

In short, a parent has a (qualified) right to "visit" with his or her child, and the department has the power to control those visits. Visitations cannot be "terminated" without a specific finding by a judge. The issue presented here, however, is whether the right to "visit" means in-person contact, regardless of the circumstances. The plaintiffs urge that it does. They begin with plain language; the word "visit," they point out, is defined as "a short stay (as for sociability or friendship) that is usu[ally] longer than a social call" or "a journey to and stay or short sojourn at a place for a particular purpose." Webster's Third New International Dictionary 2557 (1993). And the plaintiffs back their plain language interpretation by pointing out that in-person contact between parent and child is indeed different from remote contact by video 422*422 — actual physical presence and contact confer benefits that virtual contact cannot. "Visitation, like custody, is at the core of a parent's relationship with a child; being physically present in a child's life, sharing time and experiences, and providing personal support are among the most intimate aspects of a parent-child relationship" (emphasis added). Care & Protection of Walt, 478 Mass. at 229, quoting L.B. v. Chief Justice of the Probate & Family Court Dep't, 474 Mass. 231, 242 (2016).

We agree that under the statute and case law the presumptive rule — indeed, the strong presumption — is that visits between a parent and a child in department custody are to be in person. The statutory goal is to reunite the family, see Care & Protection of Rashida, 488 Mass. 217, 228 (2021), and in-person visitation is important to that goal. We expect this would be true in particular for younger children — infants and toddlers. The department concedes this importance, and the presumption of in-person contact is in the department's current policy. See note 5, supra ("Virtual Family Time can supplement, but should not replace, in-person visits").

Just as a parent's right to visit is not absolute, however, so too the right to visit in person is not absolute. The word "visit" need not be read as rigidly as the plaintiffs contend, and it is clear that the visitation right is and must be subject to adjustment for temporary, unusual, or extraordinary circumstances, in the reasonable discretion of the department. For example, the department may of course temporarily cancel or reschedule visits due to a variety of logistical issues — for example, temporary unavailability of case workers, transportation, or a location to meet. The department can also restrict the duration or frequency of the parent-child visits if the visits have a negative impact on the child. See Adoption of Darlene, 99 Mass. App. Ct. 696, 701 (2021). And if a parent poses safety risks to the child, the department may require visitation to be supervised, or temporarily suspend visitation. See Adoption of Xarissa, 99 Mass. App. Ct. 610, 614 (2021); Adoption of Imelda, 72 Mass. App. Ct. 354, 358 (2008). Contrast Adoption of Franklin, 99 Mass. App. Ct. 787, 795-796 & n.14 (2021) (cessation of visits between child and incarcerated father for at least seven months constituted termination). Such temporary and reasonable restrictions on the time, place, manner, and frequency of visitation do not constitute a termination, are within the department's discretion, and do not require that the 423*423 department obtain a court order in advance.^[12]

It follows that the department's discretion to control visits must also include the ability to direct that visitation take place virtually where, as here, in-person contact posed a significant health risk not only to the child and the parents, but also to the various adults (foster parents, guardians, social workers, and the like) who must enable such contact. In the spring of 2020 we were all urged by our government to stay home, not to travel, and to minimize all in-person contact, because in-person contact facilitated the transmission of a deadly disease. See Desrosiers v. Governor, 486 Mass. 369, 373-374 (2020), cert. denied, 142 S. Ct. 83 (2021); Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More Than 10 People, COVID-19 Order No. 13 (Mar. 23, 2020). It is difficult to imagine a better reason to restrict, temporarily and subject to the exercise of reasonable discretion, in-person contact between parent and child. As the Supreme Judicial Court has noted, G. L. c. 119, § 35, "gives the parents the right to visit their children," but that right is conditioned on whether "the welfare of the child and the public interest will not be injured" (citation omitted). Custody of a Minor (No. 2), 392 Mass. at 726.

The plaintiffs do not separately contest the reasonableness of the department's interim policy (as opposed to the department's authority to adopt it), but it is worth noting that in light of the circumstances, any such challenge would fail. In Care & Protection of Isaac, 419 Mass. 602, 603-604 (1995), the Supreme Judicial Court addressed the challenge of a child, then in the department's permanent custody, to the department's choice of school for him. In rejecting the child's challenge, the court emphasized that placement decisions by the department are within its broad discretion, and that absent clear law to the contrary, "the courts normally have no right to tell that agency how to fulfil its obligation." Id. at 606. See Care & Protection of Jeremy, 419 Mass. 616, 618 (1995). Similarly, the department "has discretionary authority regarding which particular services to recommend, and how those services shall be provided." Care & Protection of Rashida, 488 Mass. at 229. Our review of such agency determinations is for legal error or abuse of discretion.

424*424 See Care & Protection of Isaac, supra at 611. For the reasons discussed above, there was no legal error in determining, under the circumstances, that visits would take place virtually. Nor was there abuse of discretion by the department in adopting its temporary, tailored policy, which was based on then-existing public health knowledge.

The plaintiffs urge, nevertheless, that the department was precluded by law from implementing its interim policy because the department needed to secure a court order in advance. The premise of this argument is that implementation of the department's interim policy "terminated" the plaintiffs' visitation rights, such that Custody of a Minor (No. 2), 392 Mass. at 726, required a court order, and findings, in advance. For the reasons discussed above, we do not agree that virtual visitation did not satisfy the right to "visit" recognized by the Supreme Judicial Court, under the circumstances here. Moreover, whether a particular change in visitation is sufficiently lengthy to constitute a termination must be viewed in light of all the circumstances,^[13] and here the suspension of in-person visitation was plainly intended to be impermanent, although its duration could not be known in advance. The policy was characterized as "[i]nterim [g]uidance," and explicitly tied its duration to the state of emergency caused by the pandemic — "[i]n order to mitigate the spread of COVID-19 during this state of emergency, we will need to... limit[] in-person interactions as much as possible" (emphasis added). In short, the interim policy was a temporary measure to address safety concerns caused by the COVID-19 pandemic, not a termination of the plaintiffs' visitation rights.

b. Procedural due process. What we have said above largely disposes of the plaintiffs' procedural due process claims as well. The plaintiffs argue that due process entitled them to a "pre-deprivation" hearing before the department halted in-person visitation.^[14] Procedural due process requires at least the "opportunity to be heard at a meaningful time and in a meaningful manner" 425*425 (quotation and citation omitted). Mathews v. Eldridge, 424 U.S. 319, 333 (1976). In evaluating what process is due, we consider and balance (1) the private interest at stake, (2) the risk of improper deprivation and the probable value of additional procedural safeguards, and (3) the government's interest. See id. at 335; Care & Protection of Robert, 408 Mass. 52, 59 (1990). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands" (citation omitted). Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 692 (2011). Under the circumstances, due process did not require the department to obtain a court order before suspending in-person visitation during the COVID-19 pandemic.

To begin, the private liberty interest at stake is limited — it is the parents' right to visit with their child in person, after the child has been removed from their custody. The plaintiffs' claim accordingly is not about parents' rights to live with their child, or to control their child's upbringing, see Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979); those rights have shifted to the department, at least temporarily, and no parent suggests that they were deprived of due process in connection with the change in custody itself. Similarly, the plaintiffs are not complaining that they were deprived of this limited liberty interest without any due process; they concede that the courts were available — indeed, the Juvenile Court cases were already pending — through which they could challenge the change to remote visits. The plaintiffs' claim, accordingly, is only that they were deprived of "pre-deprivation" process.

On the other side of the coin, and as we have already discussed, the government interest in temporarily changing to virtual visits was very strong, as was the government's interest in doing so quickly, rather than waiting to secure a court order in advance. See Vazquez Diaz v. Commonwealth, 487 Mass. 336, 343 (2021). As courts have recognized in many other contexts, at times government must act quickly; it sometimes lacks the luxury of time. See Gilbert v. Homar, 520 U.S. 924, 930 (1997) ("where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies 426*426 the requirements of the Due Process Clause"). The Commonwealth also traditionally has "great leeway in adopting summary procedures to protect health and safety" (citation omitted). Chief of Police of Worcester v. Holden, 470 Mass. 845, 861 (2015) (no predeprivation process required when revoking gun license). These were such circumstances, and the plaintiffs do not contend otherwise. Due process is a flexible concept, and that includes the flexibility for the government to act in a crisis without first going to court, and to provide adequate postdeprivation process thereafter.^[15] See Gilbert, supra.

The order denying the defendants' motion to dismiss is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

[1] By his next friend. Thaddeus is a pseudonym.

[2] Six parents whose children were in the custody of the Department of Children and Families.

[3] Commissioner of the Department of Children and Families.

[4] "[W]here a Superior Court judge does take action on a motion to dismiss, the report need only present the question of the propriety of the action taken ... [and] need not formulate and report any other specific questions." Heck v. Commonwealth, 397 Mass. 336, 338 n.6 (1986).

[5] The amended policy has been updated several times since June 2020. The most recent iteration (current policy) states that "Virtual Family Time can supplement, but should not replace, in-person visits."

[6] We may consider affidavits filed on appeal to determine whether a case has become moot. See Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 817 n.13 (2019), cert. denied, 140 S. Ct. 858 (2020).

[7] The plaintiffs and the defendants agree — albeit for different reasons — that the so-called voluntary cessation doctrine, as described in Cantell v. Commissioner of Correction, 475 Mass. 745, 753 (2016), is inapplicable here, so we do not address the issue.

[8] The authorities that the plaintiffs cite for the contrary proposition involved class actions — in which other members of the class continued to have a personal stake in the litigation. See Cantell, 475 Mass. at 753-754; Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 493 (1981), S.C., 390 Mass. 353 (1983).

[9] The question of "evading review" refers to evading appellate review. See Care & Protection of Walt, 478 Mass. 212, 219 (2017) (considering whether issues "might otherwise evade appellate review"). Whether the plaintiffs have access to trial court or administrative review is not the touchstone of our mootness analysis.

[10] The department argues that the Superior Court lacks jurisdiction over the plaintiffs' claims because the Juvenile Court "has exclusive original jurisdiction over care and protection proceedings ..., as well as most custodial matters incident to such proceedings." We disagree that the Juvenile Court has been granted jurisdiction over the claims in this case, to the exclusion of the Superior Court. See G. L. c. 218, § 59 (Superior Court and Juvenile Court have concurrent equity jurisdiction over care and protection proceedings). As discussed supra, the claims at issue here defy the label "care and protection proceedings," as they raise issues going beyond the custody and visitation rights as to a particular child.

[11] The language of the statute itself is more limited and states, in part, that "the probate court ... may, upon petition of such parent, guardian or next of kin, and upon notice, if in its opinion the welfare of the child and the public interest will not be injured thereby, require [the] department ... to ... permit the parent, guardian or next of kin to visit the child at such times and under such conditions as the court orders." G. L. c. 119, § 35.

[12] Such decisions by the department may be challenged through a so-called abuse of discretion motion. See Care & Protection of Rashida, 488 Mass. at 222.

[13] There is no bright-line rule that defines when a suspension becomes a termination, and we decline to establish such a rule. Cf. Adoption of Linus, 73 Mass. App. Ct. 815, 817 (2009) (eighteen-month and five-month suspensions required court orders in advance); Adoption of Rhona, 57 Mass. App. Ct. 479, 490 (2003) (twenty-month suspension required court order in advance).

[14] The complaint is not entirely clear as to whether it is invoking procedural due process rights under the Federal Constitution, as well as the Massachusetts Declaration of Rights. The complaint largely references the State Constitution, but also cites Federal case law. In any event, our courts have not drawn a distinction between the constitutional due process rights in this area. See Liability Investigative Fund Effort v. Massachusetts Med. Professional Ins. Ass'n, 418 Mass. 436, 443, cert. denied, 513 U.S. 1058 (1994); Care & Protection of Robert, 408 Mass. 52, 58-59 (1990).

[15] We note that there are several procedural safeguards in place to protect the plaintiffs from erroneous deprivation of their visitation rights. In care and protection proceedings a parent may file a motion at any time challenging the department's visitation practices. See Care & Protection of Rashida, 488 Mass. at 230. In addition, a judge must also determine "not less than annually" whether the department is making reasonable efforts to reunify the child with his or her parents. G. L. c. 119, § 29C. Such "repeated opportunities for judicial review ... greatly diminish[] the risk of erroneous deprivation." Care & Protection of Rashida, 489 Mass. 128, 135 (2022)."

NO FAULT BENEFITS CLAIM - LACK OF MEDICAL NECESSITY?

I have arbitrated many of these disputes in Nassau County District Court. This case is from Kings County Civil Court.

Kim v. Allstate Ins. Co., 2022 NY Slip Op 50700 - NY: City Court, Civil Court 2022:

"Plaintiff, James J. Kim, a licensed acupuncturist, commenced this no-fault action against defendant, Allstate Insurance Company ("Allstate"), following Allstate's denial of plaintiff's claims for no-fault benefits for acupuncture services provided from February 9, 2015, through December 7, 2015. Plaintiff's assignor, Rick Greengus, was injured in an accident on December 7, 2013. Allstate denied the claims based upon the report of an Independent Medical Examination ("IME") conducted by Dr. Thomas McLaughlin on March 13, 2014. At trial, Allstate defended their denials based on lack of medical necessity by solely relying upon the IME report and live testimony of Dr. McLaughlin. The plaintiff rebutted the denial through the live testimony of Dr. Kim, as well as by cross-examining Dr. McLaughlin about the contents of his IME report. Each party also submitted trial packets for the court's consideration which were introduced into evidence on consent and without objection.

Dr. McLaughlin examined Mr. Greengus on March 13, 2014. At that time, Mr. Greengus had been receiving acupuncture services for approximately three months. Mr. Greengus complained of pain in his left shoulder and neck. Dr. McLaughlin referred to those complaints in his report as "non-descript" but did not specify what, if any, questions he asked that were designed to elicit a detailed description of Mr. Greengus' symptoms. The report notes that Mr. Greengus indicated that his symptoms had not improved with care.

In his report, Dr. McLaughlin included a section on acupuncture treatment under the heading "Traditional Chinese Medicine (TCM) Discussion." In relevant part, Dr. McLaughlin concludes:

Combined with a full history and inspection the TCM practitioner will also study the quality of the patient's pulse and tongue in order to determine not only if pathology is present and the type it is, but in order to devise a treatment protocol. Traditional Chinese Medicine, acupuncture being one facet of it, is then employed in order to rebalance the body and aid in the facilitation of health and wellness. The treatments are administered by applying needles, in the case of acupuncture, to acupoints along channels that course throughout the body and promote a physiologic response. Nine of the fourteen body channels used are named after organ systems in the body. With respect to Mr. Rick Greengus's pulse, which has a rate of 64bpm, his tongue, and the channels are unremarkable with regard to a Qi and/or blood stagnation disorder according to the principles of TCM.

Based upon his examination findings, Dr. McLaughlin concluded that no further acupuncture care was necessary because Mr. Greengus' examination did not reveal any objective findings of dysfunction or discomfort. His trial testimony echoed those findings to a certain extent. He opined that standard practice for an acupuncturist would be to evaluate the patient by taking a history and checking certain relevant factors such as pulse, the condition of the tongue and blood stagnation. Dr. McLaughlin testified that periodic evaluation or revaluation is warranted when there is an ongoing course of treatment in order to determine whether the medical provider needs to adjust the treatment being provided (Tr at 15, 17).

The plaintiff rebutted Dr. McLaughlin's findings through the testimony of Dr. Kim the provider who opined that continued acupuncture treatment was medically necessary due to continued neck pain, shoulder pain and lower back pain. Dr, Kim also referenced the same traditional Chinese Medicine diagnosis referenced in Dr. McLaughlin's IME report, i.e., blood stagnation and tongue diagnosis. Dr Kim also testified that he performed through evaluations of Mr. Greengus prior to each treatment session.

After considering the testimony and evidence presented at this trial, I find that the plaintiff should have judgment in its favor. The defense being asserted by the defendant insurer is commonly known as a "IME cut-off". The court finds this terminology, although widely used in no-fault litigation, to be imprecise and arguably misleading. To the defendant, IME cut-off is the sole proper basis for the denials. The assertion is that after March 14, 2014, based upon the findings of Dr. McLaughlin after the IME, Mr. Greengus was perfectly healthy and no longer required any further treatment, specifically acupuncture and chiropractic related. The defendant would have the court believe that the injured party's health and condition is frozen in time as of the date of the IME and, absent evidence from the plaintiff that rebuts the findings of the IME, the plaintiff has failed to meet its burden for recovery of no-fault benefits. This misstates the purpose and/or probative value of an IME.

An IME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party's medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert's prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.

An IME cut-off is not a complete defense to the action. While an IME can demonstrate a lack of medical necessity for future treatment, it does not, by itself, conclusively demonstrate that any future treatment would not be medically necessary. Instead, the IME merely shifts the burden to the plaintiff to demonstrate, by a preponderance of the credible evidence, that the treatment at issue was medically necessary (see Amato v State Farm Ins. Co., 40 Misc 3d 129(A) [App Term 2d Dept 2013], Unitrin Advantage Insurance Company v Lake Chiropractic, PLLC, 64 Misc 3d 1201[A] [New York County Civ Ct 2019]; Amato v State Farm Ins. Co., 30 Misc 3d 238, 242 [NY Dist Ct 2013]; All-In-One Med. Care, P.C. v Govt. Employees Ins. Co., 43 Misc 3d 726, 734 [NY Dist Ct 2014]).

The defendant maintains that by not recognizing the IME as a fixed cut-off date for no-fault benefits deemed not medically necessary, the Court is allowing for the reimbursements of benefits indefinitely so long as the provider self-certifies that the treatment is providing medical benefits to the injured party. This is not the Court's intention nor is it the practical result. Again, the only effect of the pre-claim IME on this litigation was to shift the burden to the plaintiff-provider to show that the treatment was medically necessary. If the defendant subsequently felt the need to try to further limit the scope of future treatment, they could have requested a supplemental IME, an EUO of the provider, or they could have had their expert conduct a peer review of all the post-IME treatment records. Instead, the defendant just denied the bills and relied on a single pre-treatment IME. The defendant is entitled to rely on that single IME if they wish, but the effect is no different than any other denial based on the alleged lack of medical necessity. It simply shifts the burden to the plaintiff, who can then rebut with credible testimony and shift the burden back to the defendant insurer.

That is exactly what happened here. Dr. Kim credibly testified that he conducted an evaluation of the patient each time the patient came to see him before providing any treatment (Tr at 55, 60). This testimony is bolstered by the records in evidence of Dr. Kim's treatment of the patient prior to the IME — which each contain notes regarding the current diagnosis of the patient and notes of what was evaluated. (Plaintiff's Exh. D, pages 182-187, 332-356, 422-427, 451-456). The court credits the testimony of Dr. Kim that further medical treatment was necessary for the injured assignor, over the testimony of Dr. McLaughlin, that it was not medically necessary. The court finds that Dr. Kim properly performed additional evaluations of the patient, consistent with the very same standards of traditional Chinese Medicine referenced in Dr McLaughlin's report, and Dr. Kim was in possession of both objective and subjective findings which correlated to support the conclusion that continued treatment was medically necessary. Dr. Kim possessed more information and was in a better position to make the determination than Dr. McLaughlin. I find that Dr. Kim's testimony is sufficient to demonstrate, by a preponderance of the credible evidence, that the treatments at issue were medically necessary."

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 SUPPORT - DISMISSING AN APPLICATION FOR MODIFICATION

In this matter, I was the attorney representing the mother in family court but did not handle the appeal.

MATTER OF JEAN-BAPTISTE v. Jean-Baptiste, 2022 NY Slip Op 4628 - NY: Appellate Div., 2nd Dept. 2022:

"Gamaliel Jean-Baptiste (hereinafter the father) and Nagelande Marie Jean-Baptiste (hereinafter the mother) have three children together. The mother and the father divorced in 2017. Under the judgment of divorce, the father was to pay child support in the sum of $973 per month. By petition dated December 28, 2020, the father sought a downward modification of his child support obligation on the basis that there had been a substantial change in circumstances, namely, that he had lost work as a result of a lack of business. The mother moved to dismiss the father's petition. The Support Magistrate, in effect, granted the mother's motion and dismissed the petition without a hearing. The father filed objections to the Support Magistrate's order. In an order dated September 27, 2021, the Family Court denied the father's objections. The father appeals.

"On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), all of the allegations in the petition are deemed true and the petitioner is afforded the benefit of every favorable inference" (Matter of Gerety v Gerety, 203 AD3d 827, 829 [internal quotation marks omitted]). "When evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal [shall] not eventuate" (id. at 829 [internal quotation marks omitted]). "`Upon an application to set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested'" (Matter of Camarda v Charlot, 182 AD3d 532, 533-534, quoting Family Ct Act § 451[1]).

"The party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Gerety v Gerety, 203 AD3d at 828 [internal quotation marks omitted]). "A parent's loss of employment may constitute a substantial change in circumstances" (Matter of Evans v White, 173 AD3d 864, 865 [internal quotation marks omitted]). "However, the proper amount of support is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (id. at 865 [internal quotation marks omitted]). "Thus, [a] party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that his or her employment was terminated through no fault of his or her own, and that he or she made diligent attempts to secure employment commensurate with his or her education, ability, and experience" (id. [internal quotation marks omitted]; see Schwaber v Schwaber, 91 AD3d 939, 939; Conway v Conway, 79 AD3d 965, 965-966).

Here, the Family Court properly denied the father's objections to the Support Magistrate's order. As an initial matter, although the father is correct that the Support Magistrate's finding regarding his weekly income was not supported by the evidence before the Support Magistrate, we nonetheless affirm because he failed to establish a prima facie case warranting a hearing on his petition (see Matter of Camarda v Charlot, 182 AD3d at 533-534). Specifically, the father failed to make any allegations or provide any evidence that after he lost work due to the effects of the COVID-19 pandemic on the economy, he engaged in "diligent attempts to secure employment commensurate with his . . . education, ability, and experience" (Matter of Evans v White, 173 AD3d at 865 [internal quotation marks omitted]). Nor did he make allegations or provide evidence to demonstrate, prima facie, that his knee injury prevented him from working (see Conway v Conway, 79 AD3d at 965). Thus, accepting the facts as alleged in the father's petition as true and according him the benefit of every possible favorable inference, and considering the father's evidence submitted in opposition to the mother's motion, he failed to sufficiently allege a substantial change in circumstances that would warrant a downward modification of his child support obligation (see Matter of Gerety v Gerety, 203 AD3d at 829-830). Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order dismissing his petition without a hearing (see Matter of Camarda v Charlot, 182 AD3d at 533-534)."

MEDICAL MARIJUANA AND DISABILITY DISCRIMINATION

Is NYS law more encompassing than NYC law? 

Scholl v. COMPASS GROUP USA, INC., Dist. Court, SD New York 2022:

"Defendants seek summary judgment on Plaintiff's claim under the New York City Human Rights Law. They contend that while New York State law recognizes a person's status as a certified medical marijuana patient as a basis for a claim of disability discrimination, the New York City Human Rights Law does not. Def. Mem. at 6-9. Defendants argue that while the State expanded the definition of disability to include anyone who has a medical marijuana certification, the City chose not to do the same, and "there is no provision in the City Code that recognizes a certified medical marijuana user as `per se' disabled under the local law." Def. Mem. at 7.

Defendants are correct. This Court is "bound" to "apply the law as interpreted by New York's intermediate appellate court[,]" unless there is strong reason to believe the New York Court of Appeals, which has not ruled on the issue, would reach a different conclusion. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999). Last year, in a similar case on which Plaintiff represents that he patterned his complaint, the First Department held: "The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not." Gordon v. Consol. Edison Inc., 190 A.D.3d 639, 640 (1st Dep't 2021). There is no reason to think the New York Court of Appeals would disagree, since the text of the City's definition of disability cannot reasonably be construed to include being a certified medical marijuana patient. "The term `disability' means any physical, medical, mental or psychological impairment, or a history of such impairment." N.Y.C. Admin. Code § 8-102(16)(a). As the Appellate Division explained, "certification as a medical marijuana patient is . . . a legal classification. It is not a `physical, medical, mental, or psychological impairment.'" Gordon, 190 A.D.3d at 640 (quoting N.Y.C. Admin. Code § 8-102).

It is beyond dispute that the New York City Human Rights Law does not recognize marijuana use as a protected disability. As noted, the text of the City Code does not define disability to include being a certified medical marijuana patient. Indeed, the City's definition of disability expressly provides: "In the case of alcoholism, drug addiction, or other substance abuse, the term `disability' . . . does not include an individual who is currently engaging in the illegal use of drugs when the [employer] acts on the basis of such use." N.Y.C. Admin. Code § 8-102(16)(a) (emphasis added). Marijuana remains an illegal controlled substance under federal law. See 21 CFR § 1308.12. Thus, the City law does not provide a remedy when an employer declines to hire an individual who is engaging in marijuana use.

In the face of controlling authority that being a certified medical marijuana patient is not, itself, a disability under the NYCHRL, Scholl contends that the City law still required Defendants to hire Scholl and allow him to use marijuana as an accommodation "to treat his underlying medical condition," chronic back pain. Pl. Opp. at 1-2, 4-7. Defendants respond that Scholl's complaint clearly alleges that "his status as a certified medical marijuana patient," not back pain, "is the basis for his being `disabled' in this action." Def. 56.1 ¶ 15; see Pl. 56.1 ¶ 15 ("Admit."); Def. Mem. at 6, 11 ("Plaintiff repeats that [being a certified medical marijuana patient] is the basis of his disability at least ten times in his pleading"). Defendants further assert that there is no admissible evidence in the record that Scholl informed Defendants that he suffered from back pain, let alone was disabled on that basis. Def. Mem. at 10-11 (citing Vitti v. Macy's Inc., 758 F. App'x 153, 157 (2d Cir. 2018) (employer who acts without knowledge of a disability cannot be said to have discriminated on the basis of that disability)).

The Court has carefully reviewed the complaint, all of the submissions in connection with the motion for summary judgment, and the parties' representations on the record at oral argument. Scholl clearly made a strategic decision to prosecute this case, from its inception, on the theory that being a certified medical marijuana user is, itself, a protected disability. The complaint repeatedly defines Scholl's disability as "being a certified medical marijuana patient." Cmpl. ¶ 34; see id. ¶¶ 1, 29 ("Defendants suddenly rescinded Plaintiff's job offer and denied him employment solely due to his disability (certified medical marijuana patient)"), 30 ("Defendants penalized Plaintiff . . . because of his certified use of medical marijuana"), 33, 35, 36 ("Defendants discriminated against, failed to accommodate, and refused to hire, Plaintiff solely due to his disability (certified medical marijuana patient)"), 37 ("But for the fact that Plaintiff was disabled (certified medical marijuana patient), Defendants would not have terminated his employment"), 44, 47 ("Defendants engaged in an unlawful discriminatory practice in violation of New York City Administrative Code § 8-107(1)(a) by discriminating against Plaintiff because of his disability, denying him employment, and refusing to provide Plaintiff with a reasonable accommodation for his disability (certified medical marijuana patient)"), 51.

The complaint makes two passing mentions of back pain. First, immediately after alleging that Scholl was "denied employment due to his disability (certified medical marijuana patient)," the complaint adds that Scholl "was denied a reasonable accommodation for his disability (denied employment because he was utilizing medical marijuana to treat his chronic back pain)." Cmpl. ¶ 1 (emphases omitted). The complaint later mentions that Scholl became a certified medical marijuana patient because of a "back injury he suffered when he was younger." Cmpl. ¶ 16. But Scholl makes clear that, in the claim at issue on summary judgment, that the disability Defendants allegedly failed to accommodate is Scholl being a "certified medical marijuana patient." Cmpl. ¶ 47. The complaint specifically alleges that Defendants engaged in unlawful discrimination under the New York City law by "refusing to provide Plaintiff with a reasonable accommodation for his disability (certified medical marijuana patient)"). Cmpl. ¶ 47 (emphasis added).

The complaint never alleges that Defendants denied Scholl employment because of his back pain or that Defendants even knew Scholl had back pain. On the contrary, the complaint repeatedly alleges that Defendants refused to employ Scholl "solely" because he was a "certified medical marijuana patient." Cmpl. ¶ 29; accord, e.g., 30 ("Defendants penalized Plaintiff . . . because of his certified use of medical marijuana."). Similarly, Scholl specifically alleges that he "informed" Defendants that he "was a certified medical marijuana patient," but he never alleges that he informed Defendants that he suffered from back pain. Cmpl. ¶ 22.

At oral argument, Plaintiff's counsel conceded that he patterned the complaint in this case after the complaint in Gordon, in which the plaintiff unsuccessfully argued that being a certified medical marijuana patient is a disability under the NYCHRL.^[2] Tr. at 25:20-21. That is clearly the theory of the complaint in this case. Furthermore, as became clear at oral argument, Plaintiff's counsel relied on the theory that Scholl's disability was only his certification as a medical marijuana patient throughout the discovery period in this case. Specifically, when Defendants first requested medical records, seeking "all documents concerning any disability," Plaintiff's counsel produced only Scholl's medical marijuana certification and otherwise objected that the request sought "irrelevant information." Tr. at 12:23-24, 13:4-6. In other words, Plaintiff's counsel, from the outset, took the position that the only relevant document concerning any disability in this case was Scholl's medical marijuana certificate. Later, when Defendants asked Plaintiff to complete a HIPAA authorization, so Defendants could access whatever medical records Scholl had submitted to obtain his medical marijuana certificate, Plaintiff's counsel responded: "Such a request seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence." Tr. at14:16-19. Again, Plaintiff's counsel strategically chose to litigate this case on the theory that Scholl's disability was only his medical marijuana certification, and not any underlying condition. See Tr. at 13:4-10, 14:12-19, 46:12-16. Scholl could have sought leave to amend after the ruling in Gordon, and produced discovery about his asserted childhood back injury, but he chose not to change his strategy.

Instead, Scholl insists that this Court should rule that the NYCHRL applies to Scholl merely because "by the very nature of having a medical marijuana certificate, a person must suffer from an underlying medical condition." Pl. Opp. at 7. Such a ruling would vitiate the logic of Gordon that the "City HRL does not" recognize such certification, by itself, "as a protected disability." Gordon, 190 A.D.3d at 640. This Court is bound by Gordon. See Pahuta, 170 F.3d at 134. Scholl failed to allege that he suffered from, and that Defendants knew of, a disability other than his "certified use of medical marijuana." Cmpl. ¶ 30. Thus, there is no genuine issue as to any material fact, and Defendants are entitled to a judgment as a matter of law on Scholl's claim under the New York City Human Rights Law."

ADULT SURVIVORS ACT - WINDOW TO BEGIN NOVEMBER

On May 22, Governor Kathy Hochul signed the Adult Survivors Act (S.66A/A.648A), creating a one-year lookback window for survivors of sexual assault that occurred when they were over the age of 18 to sue their abusers regardless of when the abuse occurred. In 2019, New York passed the Child Victims Act, which created a one-year lookback window for survivors of childhood sexual abuse to file claims otherwise barred by the statute of limitations. Similar to the Child Victims Act, the Adult Survivors Act will empower survivors of sexual offenses that occurred when they were over the age of 18. The one-year window will begin six months from signing and will allow survivors to sue regardless of the statute of limitations. 

REASONABLE EFFORTS TO RETURN TO FAMILY IN NEGLECT AND ABUSE PROCEEDING NOT REQUIRED

MATTER OF SCOTT, 2022 NY Slip Op 50645 - Thomson Co. Family Court 2022:

"Respondent Jamie Scott (hereinafter "the mother" or "the Respondent") is the mother of the subject child Britney Scott (date of birth: XX/XX/13).^[1] The paternity of the child has never been legally established. On September 4, 2020, the Tompkins County Department of Social Services (hereinafter "the Department" or "the Petitioner") filed a Petition by Order to Show Cause pursuant to Family Court Act Article 10 alleging abuse and neglect of Britney by the mother. The Court ordered the temporary removal of Britney from the Respondent and placed the child in the care and custody of the Department pending resolution of the proceedings.

A Fact-Finding Hearing was conducted by the Court on February 4, 2021, March 19, 2021, April 2, 2021, and April 27, 2021. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Kristine Shaw. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On June 7, 2021, this Court issued a Decision and Order in which it determined that Britney is a "neglected child" within the meaning of FCA § 1012(f)(i)(B) and that the Respondent mother engaged in conduct and demonstrated a lack of judgment which created an imminent danger of impairment to her daughter. The Court's Decision and Order entered June 7, 2021, is incorporated by reference as if fully set forth herein.

On October 13, 2021, a Dispositional Hearing was held. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On November 10, 2021, the Court issued a Fact-Finding Decision and Dispositional Order in which it determined that the Petitioner had established by a preponderance of the evidence that presently the Respondent lacks the fitness to regain custody of her daughter and that her complete lack of insight into her neglectful conduct would place the child at a very real and imminent risk of harm should Britney be returned to the Respondent. The Court determined that it was in Britney's best interests to remain in the care and custody of the Department, placed with her current foster family. The Court placed the Respondent under the supervision of the Department pursuant to FCA § 1057 and imposed a number of orders and conditions on her. The Court's Fact-Finding Decision and Dispositional Order entered November 10, 2021, is incorporated by reference as if fully set forth herein.

On January 6, 2022, the Department filed a motion pursuant to FCA § 1039-b(b)(6) requesting a finding that reasonable efforts to return Britney to the Respondent mother's home are no longer required. On March 11, 2022, Respondent filed an Affirmation in Opposition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to FCA § 1039-b(b)(6), "reasonable efforts to make it possible for the child to return safely to his or her home shall not be required where the court determines that the parental rights of the parent to a sibling of such child have been involuntarily terminated unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future" [emphasis added]. The obligation of the Department to make and prove diligent efforts may be excused retroactively. Matter of Marino S., 100 NY2d 361, 373 (NY 2003).

The Court is not required to hold an evidentiary hearing on such a motion but must do so only "when genuine issues of fact are created by the answering papers" Matter of Damion D., 42 AD3d 715, 716 (3rd Dept. 2007). A parent's engagement in rehabilitative services is not sufficient to require an evidentiary hearing. Matter of Carlos R., 63 AD3d 1243, 1245 (3rd Dept. 2009). Regardless of whether a respondent may have recently engaged in some rehabilitative services, there is a "sound basis" for the Court to dispense with the agency's requirement to make reasonable efforts where there is a "consistent past history of substance abuse and failed attempts at rehabilitation ..." Id.

In this case, the Respondent mother's answering papers do not raise a genuine issue of fact requiring an evidentiary hearing. It is uncontroverted that the Respondent's parental rights to four of her children — John Scott, Paul Scott, Georgia Scott, and Riann Scott, — were involuntarily terminated by decision signed April 1, 2011, and order entered April 15, 2011 (Petitioner's Exhibits L & M). As such, this Court must dispense with the Department's requirement to engage in reasonable efforts to return Britney to the Respondent's care unless the court determines that continued reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. The Court does not find that any of these conditions are met, let alone all three, and therefore the Department shall no longer be required to engage in reasonable efforts.

This Court determined after the Fact-Finding Hearing that the Respondent used Britney as sexual bait for a pedophile, placing her in imminent danger of mental, emotional, and physical harm. But for the intervention of law enforcement, Britney faced a very real danger of being further sexually exploited, through child pornography and/or sexual assault. The Respondent's own testimony at trial was devoid of credibility and "absurdly contradictory." (Decision and Order entered June 7, 2021). Further, the Respondent's admissions at trial established that Britney was not the first child of hers that she subjected to such danger. The Respondent testified that, prior to losing custody of her daughter Miley Scott, Miley disclosed that she had been sexually abused by a man named Harvey Kelly in South Carolina. The Respondent had allowed Mr. Kelly access to Miley, and following the child's disclosure, Child Protective Services in South Carolina "told [Respondent] not to let [Miley] be left alone with him again."

At the Dispositional Hearing in this matter on October 13, 2021, the Respondent testified that she would follow all mandates of the Court as set forth in the subsequent dispositional order. However, since that time, the Respondent has repeatedly stated to the Department's caseworker Angela Pitt that she will not abide by the Court's orders, that she will not work with the Department, that she did not do anything wrong, and that instead of working towards her milestone accomplishments, she plans to wait until the appropriate time and then appeal. (Petitioner's Exhibit X). Despite being ordered to submit to random screening for substance abuse, the Respondent has refused, thwarted, and evaded the Department's numerous attempts to ensure the Respondent's compliance with this condition, even claiming that she "dropped her phone in the toilet." (Petitioner's Exhibit X). The Department was left with no way of directly reaching the Respondent, in violation of the Respondent's obligation to maintain communication with the Department. (Petitioner's Exhibit X). The Respondent has also denied the Department access to her home on at least one occasion, has refused to participate in phone calls with Britney if they are supervised by the foster parents, has demanded that Britney be removed from her foster home, and has engaged in inappropriate conduct towards both the foster parents and the Department, including telling caseworker Pitt, "[B]itch, shut the hell up." (Petitioner's Exhibit X). The Court finds that the Respondent continues to demonstrate a complete lack of insight into her neglectful conduct, placing Britney at a very real and imminent risk of harm should she be returned to the Respondent.

Even accepting the Respondent's claims in her answering papers as true that she has obtained stable and secure Section 8 housing in Elmira, that she has provided information about her employment efforts to the Department, that she is in the process of seeking further engagement in mental health services in Elmira, and that she has maintained contact with Britney despite obstacles, none of those gains, either individually or collectively, are sufficient to overcome her long history of failed attempts at rehabilitation such that returning Britney to her care would be likely in the foreseeable future, would be in the child's best interests, and would not be contrary to the child's health and safety. The Respondent has a remarkable 30-year history of removals, neglect findings, loss of custody, and parental rights terminations involving all eight of her biological children as a result of her failure to adequately address mental health issues and consequent related issues including substance abuse, inappropriate housing, dishonesty, and an inability and/or refusal to keep unsafe men away from her children. (Petitioner's Exhibits A through M). These issues have severely impacted her ability to safely parent every child ever in her custody. Aside from the four children to whom her parental rights were involuntarily terminated, the Respondent lost custody of three other children through an Article 6 order as part of an Article 10 dispositional settlement. (Petitioner's Exhibit B). All eight of her children have been removed from her care at least once, three of them have been removed twice, and three of them (including Britney) have been removed three times. (Petitioner's Exhibits A through M).

The bases for most of these removals were the Respondent's repeated failures to obey court mandates, dishonesty regarding her refusal to follow court orders, and repeated failed attempts at rehabilitation. (Petitioner's Exhibits A through M). Indeed, there is a "consistent past history of substance abuse and failed attempts at rehabilitation" providing a "sound basis" for the Court to dispense with the requirement of making and proving reasonable efforts. Matter of Carlos R., 63 AD3d 1243, 1245 (3rd Dept. 2009). Further, the Respondent's recent deliberate evasion of the mandated random drug screenings calls into question the truthfulness of her repeated assertions to this Court that she has maintained a long period of sobriety and signals that the Respondent's substance abuse is not limited to a past history but is very much a present concern.

For all of the reasons set forth above, returning Britney to the Respondent mother's care is not likely in the foreseeable future, would not be in Britney's best interests, and would in fact be contrary to the child's health and safety. As such it is hereby

ORDERED that the Department shall not be required to engage in or prove reasonable efforts to return the child to the Respondent's home; and it is further

ORDERED that this dispensation operates retroactively pursuant to the legal authority cited above; and it is further

ORDERED that a Permanency Planning Hearing is scheduled for XXXX.

[1] The names of the subject child, Respondent, and other third parties have been fictionalized to preserve anonymity."

NEW RULES COMING FOR REMOTE NOTARY

On January 31, 2023, notaries wishing to provide remote notary services must register with the Department of State as an electronic notary.  On this date, regulations will go into effect placing additional requirements on remote notary services and providing for additional standards relating to a notary’s use of an electronic signature.  Additional information will be posted here once the regulations have been proposed and adopted.

A copy of the proposed rules can be found at this link:

https://dos.ny.gov/system/files/documents/2022/07/proposed-rule-making-notaries-public-electronic-notaries.pdf

CHILD CARE - GROUP OR FOSTER HOME - THE LEAST RESTRICTIVE PLACEMENT?

MATTER OF FELIPE R., 2022 NY Slip Op 22216 - Bronx Family Court 2022:

"The Administration for Children's Services ("A.C.S." hereafter) filed the underlying neglect petition against Iris C. on January 13, 2022. The petition alleges that she neglected the subject child, Felipe R., under Family Court Act ("F.C.A" hereafter) § 1012, in that she used excessive corporal punishment against him and his sister, Judith R. Ms. C. was previously found to have neglected another sibling, Victor R., on January 26, 2022, through a submission under F.C.A. §1051a.

On April 18, 2022, ACS filed Motion No.4 seeking an order under F.C.A 1055-c that continued QRTP placement is necessary to adequately address Felipe's needs; the attorneys for the child and for the mother, ask that this application be denied.^[1]

The hearing commenced on June 6, 2022 and continued through June 22, 2022. ACS entered three documents as Petitioner's 1-3: the QI for Felipe; the CALOCUS for Felipe; and the Summary Document for Felipe. Each of these was prepared by the ACS Qualified Individual (QI) who also testified concerning the basis for her recommendation that Felipe's needs require continued placement in a qualified residential treatment facility. ACS did not submit any other testimony or witnesses.

In response, the Attorney for the Child cross examined the QI and marked as AFC #1 a report entitled "Away from Home: Youth Experiences of Institutional Placements." ACS objected to admitting this document as lacking foundation. The Court reserved decision.

The Court has now reviewed the document and finds that it is admissible under CPLR 4532, which covers the admission of periodicals of general circulation. "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to printed materials purporting to be newspapers or periodicals of general circulation; provided however, nothing herein shall be deemed to preclude or limit the right of a party to challenge the authenticity of such printed material, by extrinsic evidence or otherwise, prior to admission by the court or to raise the issue of authenticity as an issue of fact." ACS did not challenge the validity or authenticity of the report. The report, prepared by Think of Us, a non-profit policy and research organization dedicated to child welfare practice, was supported by the Annie Casey Foundation and released in July 2021. Through structured research with foster youth, the authors document the negative impacts of unnecessary group home placement. It has been widely distributed and reported on, including forming a basis for an editorial published in the New York Times.^[2]

Additionally, all parties agree that hearsay is admissible under 1055-c, under FCA 1046(c) which reads: "In a dispositional hearing and during all other stages of a proceeding under this article, except a fact-finding hearing, and in permanency hearings and all other proceedings under article ten-A of this act, only material and relevant evidence may be admitted."

This report qualifies under CPLR 4532 and is both material and relevant and is therefore admitted as AFC #1.

LEGAL STANDARD FOR QRTP

This decision pertains to a contested hearing pursuant to SSL §393(2), F.C.A. §353.7(3), §756-b(3), §1055-c(2), §1091-a, and §1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. §672 and §675a are codified in NY State. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court is asked to determine the most appropriate and least restrictive placement possible for Felipe. Specifically, in order to maintain his current placement, the Court must determine whether 1) Felipe's needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe's needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. If the Court determines that placement in a QRTP is required, it must specifically state the basis for that decision and whether an alternative setting could meet the child's needs.

DECISION

The Court has reviewed all the evidence and testimony and finds that ACS has failed to meet its burden under FFPSA and FCA 1055-c.

Felipe has autism. He struggles with self-soothing, hygiene, expressing his needs, and other basic tasks. However, he forms meaningful bonds with family, including with his mother and siblings. Moreover, Felipe will need the same basic assistance whether he is in a group setting; at home; or in a therapeutic foster home. The services that he currently receives at his group home, including assistance with hygiene, school, and occupational therapy, are available in the community. Indeed, until the filing of the underlying petition, he has been living with his adoptive mother and siblings where his basic needs have been met even without extensive additional services. Felipe was also receiving speech, physical, and occupational therapy through his District 75 school placement. ACS's documentation does not present any evidence of a change in his medical, physical or emotional circumstances that would demonstrate a sudden compelling reason for his placement in a residential treatment facility as opposed to a family setting.

Are some things easier to accomplish in a group home? Sure. The Court can see that it would be easier to attend to Felipe's needs in a group care facility where there are numerous trained professionals and an on-site school. But that is not the standard that either ACS or the Court is asked to use. Rather, the Court must find that the setting is the least restrictive possible. A qualified individual is required to complete an assessment in order to aid in that determination. In assessing the most effective and appropriate level of care, the qualified individual must consider "whether the needs of the child can be met with family members or through placement in a foster family home." SSL § 409-h (1)(a). If the qualified individual does determine that a child may not be placed in a foster family home, they must specify the reasons why. Id. at (1)(c). "A shortage of or lack of foster family homes shall not constitute circumstances warranting a determination that the needs of the child cannot be met in a foster family home." Id. Nothing in the ACS evidence explains whether Felipe's needs can be met through a family foster home setting or documents that a QRTP is the least restrictive setting for Felipe. To the contrary, the QI admitted during her testimony that she did not base her placement recommendation on a comparison between different possible placements. Rather, she relied on the tools provided to her by ACS. None of these tools adequately requires the QI to document alternatives or consider the pros and cons of each, despite their statutory obligation. Perhaps they should. Instead, the ACS QI was forced to admit that she did not consider whether Felipe could receive OT in the community, had not spoken with his District 75 school; was not aware of the potential downside of group home placement; and did not observe or speak with Felipe directly. Further, the Qualified Individual Report clearly states that initial attempts were made to place Felipe in a therapeutic foster home, but no homes were identified.

Most importantly, ACS did not adequately account for how placement in a residential treatment center would impact Felipe's planning goals. The goal is for Felipe to return home. He is only 10 years old. He is currently among the youngest residents of Edenwald and, even according to ACS reports, did not transition to group care easily; he has received bruises during his stay there; he does not share well and continues to act out during group activities. But most importantly, as documented in "Away from Home," young people placed in group facilities lack access to the kind of love and support that is possible in a family setting.^[3] Felipe, as shown through his connection to his current family, benefits from long-term relationships and should not be denied that opportunity any longer.

The Court finds that a placement in group home is not the least restrictive placement possible forFelipe; nor is it consistent with his short- or long-term needs. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility.

FINDING AND ORDER ON QRTP: The Court finds that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at home services consistent with Felipe's short- and long-term needs.

WHEREFORE, THIS CONSTITUTES THE ORDER OF THE COURT.

[1] ACS also filed a motion seeking approval for Judith R.'s placement in a QRTP; however, the QI assessment did not recommend continued placement and at the conclusion of the hearing the court denied the application on consent of all parties.

[2] "I will never forget that I could have lived with a family who loved me," New York Times, Sept 16, 2021

[3] See, "Away from Home," www.thinkof-us.org/case-studies/away-from-home; Finding 5.1, "Youth Lacked Love."