DECISION and ORDER on Respondent’s Motion for Summary Judgment or Dismissal Pursuant to FCA §1051(c))PROCEDURAL AND FACTUAL BACKGROUND Before the Court is a motion for summary judgment or, in the alternative, dismissal pursuant to Family Court Act (“FCA”) §1051(c), filed by the Respondent mother regarding neglect allegations brought against her by the Administration for Children’s Services (“ACS” or “Petitioner”). The Respondent mother’s motion, filed on June 6, 2018, initially argues for summary judgment based on the non-hearsay evidence presented at a hearing held by this Court pursuant to FCA §1028 from January 19th through February 6, 2018 and alternatively argues for dismissal pursuant to FCA §1051(c). Petitioner filed an affirmation in opposition to the Respondent mother’s motion on both grounds. The Attorney for the Child (“AFC”) filed an affirmation in support of the Respondent mother’s motion on both grounds as to the subject child Johanna and on 1051(c) grounds as to the child Jaice.The initial neglect petition brought against the Respondent mother pertained to the subject child Johanna, who was one year old at the time, and was filed pursuant to Family Court Act (“FCA”) Article 10 on November 6, 2017. The petition contained allegations that Ms. W had been diagnosed with schizoaffective disorder, paranoia, and depression in October 2017 and had, at various times, been treated at Kings County, Brookdale and Interfaith Hospitals. The petition states that the maternal grandmother, Ms. Y, had been noticing changes in her daughter’s behavior in the three weeks prior to filing in that she was talking to herself and leaving her daughter in her crib for days at a time. Additionally, Ms. Y noticed, based on the pills left in the bottle, that her daughter had stopped taking her prescribed psychotropic medication. On November 2, 2017, when ACS had allegedly arranged with the Respondent mother to go to Kings County Hospital for an evaluation, Ms. W called the police and claimed that ACS was kidnapping her and left the hospital before receiving treatment. Johanna was removed by ACS prior to filing and, upon filing, was remanded to ACS to live with her grandmother while the case was pending.Ms. W moved for the return of her daughter on January 16, 2018 resulting in the aforementioned 1028 hearing. The AFC supported Johanna’s return home. In a written decision issued on February 6, 2018, this Court returned Johanna to her mother’s care on conditions including compliance with a safety plan that Ms. W and her mother, Ms. Y, had developed to ensure Johanna’s safety. See Court’s Decision on 1028 Hearing (attached as to Respondent Mother’s Motion as Exhibit A). Ms. W gave birth to her second child, Jaice, on May 12, 2018 and ACS filed a neglect petition as to him on May 15th.This second neglect petition reiterates the allegations in Johanna’s petition as well as alleging that Ms. W admitted herself to the Kings County psychiatric unit on March 27, 2018 because she was hearing voices and feeling depressed. Although Ms. W was discharged a few days later, she again returned on her own to the hospital on April 7th due to anxiety related to the impending birth of her son. Ms. W remained in the hospital until after Jaice’s birth on May 10th. The petition further alleges that the hospital social worker stated that Ms. W will need ongoing support after her release and that she “[could] not do the right thing for the baby at [that] time.” Neglect Petition, filed May 15, 2018, docket no. NNXXXXX-18.In the Respondent mother’s affidavit attached to her motion, Ms. W states that she began feeling a lot of anxiety in March as a result of the ongoing ACS case and uncertainty as to whether her son would be removed after his birth. Ms. W spoke to her doctor about increasing her anxiety medication but he recommended against that as potentially harmful to her unborn child. As a result, Ms. W decided to admit herself to Kings County Hospital and arranged for her mother, Ms. Y, to assume care of Johanna as she had done after the original removal by ACS in November. However, Ms. Y was dealing with her own physical health issue and planning for upcoming surgery so when the Respondent mother’s hospital stay was extended to await Jaice’s birth, Ms. W needed to make other arrangements. Ms. W stated in her affidavit that she did not have any other relatives in New York City that she felt comfortable caring for Johanna and she and her mother agreed to have the Respondent mother’s uncle, Mr. Andrew T, and his wife, who live in Georgia, care for Johanna. Although ACS did not authorize this transfer in advance1, Ms. W had asked her hospital social worker to reach out to the caseworker to discuss arrangements for Johanna and discharge planning for her son once born. Ms. W was planning with her mother, therapist, and shelter social worker as well. The hospital social worker invited ACS to a discharge planning conference for Ms. W on April 30th but no one from ACS attended. Because this increased Ms. W’s anxiety about ACS’s possible plans, she chose to remain in the hospital rather than be discharged prior to Jaice’s birth. The papers filed by ACS do not substantively controvert any of these facts. See ACS Affirmation in Opposition, p. 3, filed June 19, 2018.ACS’s “Court Report”, dated May 18, 2018, and attached as Exhibit I to Respondent mother’s motion, indicates that the Ts’ home was assessed and there were no safety concerns. Johanna, as well the Ts’ own two children, were seen by the ACS investigator and found to be well cared for. Finally, the Ts satisfied all background checks and were found not to have any criminal, child protective or domestic violence history in Georgia or New York.As a result of this favorable report as well as the consent of the AFC, on May 21, 2018, the Court allowed Jaice to join his sister on a visit to his maternal great uncle’s home in Georgia and ordered that Mr. T come to NYC to appear in Court on the adjourn date of June 14th, if not sooner. On June 14th, Mr. T was present in court along with Jaice and no concerns were raised about either child’s well-being in Georgia. The visit was continued until the end of the summer.EVIDENCE AT THE 1028 HEARINGThe evidence at the hearing was clear and largely undisputed as to the following facts: Ms. W was diagnosed with a mental illness at age 16, specifically schizoaffective and bipolar disorder. Her mother, Ms. Y, who is herself a mental health therapist’s aide at a children’s psychiatric facility, was and continues to be, very involved in her daughter’s care, taking her to the doctor and obtaining a treatment plan which includes medication. Ms. W has been living with her diagnosis in the 10 years since she was diagnosed and is now 26 years old. Over the last decade, Ms. W has gained considerable knowledge about, and insight into, her illness, which is now diagnosed as schizophrenia, paranoid-type.Ms. W became pregnant with Johanna in 2016 and testified that she remained on her medication, Haldol and Benedryl, during that pregnancy. Ms. Y testified that her daughter was “the best she has seen her” during the time leading up to Johanna’s birth and afterwards, maintaining her mental health treatment regimen in Queens and following up with prenatal care in Brooklyn. Ms. W, who had lived with her mother off and on before, resided with Ms. Y more consistently after the birth of Johanna in January 2017.Ms. W then became pregnant with her second child in the late summer or fall of 2017. Both she and her mother testified that Ms. W’s treatment provider at that time, a psychiatric nurse practitioner at Brightpoint Health named Ms. O, had advised her to immediately discontinue her medication during this pregnancy. Ms. W insisted, and her mother verified, that she was extremely reluctant to do this as she had taken the medication without negative consequences during her first pregnancy and she was worried about the impact on her mental health if she stopped. Nevertheless, because of the strong recommendation by the nurse practitioner, Ms. W understandably stopped taking her medication in the fall of 2017. Her mother immediately noticed that Ms. W’s sleep patterns began to change and her mental health gradually decompensated.On October 11, 2017, three oral report transmittals (“ORTs”) were called in because the Ms. W had called the police to make allegations that the maternal grandmother was sexually abusing Johanna. The sources of the ORTs also raised concerns regarding the mother’s mental health given her statements and behavior. Over the course of the next month, ACS Caseworker Harris attempted to work with Ms. W to stabilize her mental health given the fact that Johanna was well cared for and the mother was forthcoming, both about her mental health history and the fact that she had stopped taking her medication at the advice of a professional. Caseworker Harris verified this information with Ms. O, who wanted the mother to follow up with a gynecologist to determine what medication she could take. Unfortunately, by that point, Ms. W acknowledged on the stand that, although she made an unsuccessful attempt to see Ms. O at Brightpoint to get new medication, she was suffering from panic attacks, delusions and fatigue and was not able to take other steps to regain her mental health on her own. Ultimately, ACS made the decision to file this petition and seek removal of Johanna. To her credit, Ms. W immediately admitted herself to Kings County Hospital after her daughter’s removal. Because of the mother’s allegations, ACS would not initially place Johanna with the maternal grandmother while they investigated further. However, as soon as Ms. W was stabilized on medication in the hospital, she was able to recognize that her allegations were the product of delusions and asked ACS to place Johanna with Ms. Y where she remained until the end of the 1028 hearing.Since the time Ms. W was released from Kings County Hospital at the end of November 2017 until the conclusion of the 1028 hearing, she attended meetings at ACS and immediately engaged in a parenting skills class, which she has since completed. She was seeing her therapist weekly and psychiatrist monthly for medication management including monthly injections of Haldol. Prior to Johanna’s return, Ms. W was visiting her daily at her mother’s home, calling every morning to see how she was and to make a plan for the day, and spent several nights there after the Court allowed some supervised overnight visits during the course of the hearing. In her testimony at the hearing, Ms. W described having developed a safety plan with her mother to ensure Johanna’s safety if her medication stopped working or she became unstable for any reason. This plan was memorialized in the Court’s order which also required Ms. W to inform all her treatment providers, shelter staff and day care providers of her safety plan to ensure compliance with her mental health treatment and to provide contact information for the maternal grandmother in the even her mental health were to deteriorate. This back-up plan was created to ensure that Johanna would be well cared for at all times.MOTION FOR SUMMARY JUDGMENTIn seeking summary judgment, the Respondent mother contends that there is no triable issue of fact remaining after the Court’s decision at the 1028 hearing. “Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, the Act does provide that, in such cases, the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved.” Suffolk County Dept. of Social Services on Behalf of Michael V. v. James M., 83 NY2d 178, 182 [1994] (citing Family Ct. Act §165[a]). See In re Harmony M. E., 121 AD3d 677, 680 [2d Dept 2014]; In re Giovanni S., 98 AD3d 1054 [2d Dept 2012]. “It is fundamental that summary judgment should only be granted where there are no material and triable issues of fact.” Paulin v. Needham, 28 AD3d 531, 531 [2d Dept 2006] (internal quotation omitted). “This drastic remedy should not be granted where there is any doubt as to the existence of such issues or where the issue is arguable.” Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] (internal citations and quotations omitted).Petitioner’s case at the hearing consisted of the testimony of two ACS caseworkers and documentary exhibits consisting of three ORTs. Ms. W testified on her own behalf at the hearing and called her mother, Ms. Y. As part of her motion, the Respondent mother asks the Court to consider her own sworn affidavit dated May 31st, 2018, the ACS child safety conference summary dated May 15th, 2018, and an ACS Court Report dated May 18th, 2018.For purposes of the summary judgment decision, this Court will consider only the non-hearsay evidence and testimony admitted at the 1028 hearing or in the exhibits attached to the motion papers. See Family Ct. Act 1046(b)(iii); see also Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979] (“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment” in his favor, and he must do so by tender of evidentiary proof in admissible form.“) (internal citations and quotation marks omitted) (emphasis added).The Family Court Act and case law make clear that the mere fact a parent has a mental health diagnosis, even a serious one, does not mean that they cannot safely and adequately care for their child. The definition of neglect in Article 10 does not include mental illness as an enumerated condition which constitutes per se neglect. Therefore, the parent’s mental health condition must result in conduct which constitutes a “failure to exercise a minimum degree of care” that places the child in “imminent danger” of their physical, mental or emotional condition becoming impaired. FCA §1012(f)(i).“It has long been held that a psychiatric diagnosis or prior psychiatric hospitalization, standing alone, is insufficient to establish neglect per se.” In re Xavier G., 19 Misc 3d 1113(A) [Fam Ct 2008]. See also Matter of Moises D., 128 AD2d 775, 778 [2d Dept 1987] (“past deficiencies and psychiatric hospitalizations do not, by themselves, establish neglect or unfitness”). Rather, “the evidence must establish a causal connection between the parent’s condition, and actual or potential harm to the children.” In re Nialani T., 125 AD3d 672 [2d Dept 2015] (quoting In re Alexis S.G., 107 AD3d 799 [2d Dept 2013]). The Second Department, in In re Joseph A., Jr., reversed a finding of neglect due to the lack of that causal connection, finding that “there was no evidence that the mother’s mental illness or delusional beliefs placed the children in imminent danger.” 91 AD3d 638, 640 [2d Dept 2012].It is notable that, at the 1028 hearing, there was no evidence of any actual harm to the child Johanna, even during the time her mother was off medication and her mental health was deteriorating. The only suggestion of any impact on the child came from the testimony of the maternal grandmother that she noticed the Respondent mother was not taking Johanna out of the house — as opposed to her crib as alleged in the petition — as regularly as usual which, while perhaps not ideal, did not, in and of itself, cause actual harm nor did it place the child in any imminent risk of harm. Jaice was clearly not placed at risk given that the Respondent mother gave birth in the hospital after voluntarily admitting herself out of concern for her own stability and the well-being of her children, and then made arrangements for family to care for her children until she was able.ACS appears to argue that the risk of harm exists merely because Ms. W has a mental illness that requires her to maintain her health through medication. This, Petitioner suggests, presents the possibility that she could stop taking her medication at any time and allow her mental health to deteriorate such that her children will be placed at risk. However, the nonhearsay evidence at the 1028 hearing and in Ms. W’s affidavit establishes otherwise.First, at the 1028 hearing, this Court credited that Ms. W’s decision to stop taking her mental health medication was made only after the strong advice of her psychiatric medical provider and Ms. W’s own desire not to harm her unborn child, even though her own instincts told her that she needed the medication to stay healthy. The evidence at the hearing established that the nurse practitioner, Ms. O at Brightpoint Health, abruptly told the Respondent to stop all medications after learning that Ms. W believed she was pregnant, even knowing that Ms. W did not have immediate access to prenatal care. This treatment recommendation was made without any apparent effort by Ms. O to obtain the immediate obstetric consult regarding the risks and benefits of the Respondent remaining on her much-needed psychiatric medication. In addition, Ms. W told Nurse Practitioner O that she had taken Haldol during her pregnancy with Johann without ill effect. Nevertheless, Nurse Practitioner O insisted the medication be stopped and the impact of this treatment change was what the Respondent mother feared-a sudden deterioration of her mental health. Ms. W cannot be found to have failed to exercise a minimum degree of care when she followed the advice of her treatment provider.Second, the Court finds that, even if Ms. W’s mental health were to deteriorate for any reason, her children would not be at risk because of her family support and the safety net it provides. Ms. W is truly fortunate in having an extremely supportive and involved family, especially her mother. Ms. Y was there for her daughter after Johanna was born and when she was pregnant with Jaice, and was able to see the deterioration caused by the poor medical advice Ms. W received to go off her Haldol while pregnant. Ms. Y was key to the safety plan Ms. W formed which allowed this Court to return Johanna to her care. Ms. W followed that safety plan when her anxiety increased to a concerning degree and, because of her pregnancy, her medications could not be adjusted accordingly. Ms. W then placed Johanna in the grandmother’s care and voluntarily admitted herself to the hospital. Jaice’s petition alleges that a hospital social worker indicated the mother would need additional support to care for him and that she “cannot do the right thing for this baby at this time.” Neglect Petition, filed May 15, 2018, docket no. NN-XXXXX-18. However, Ms. W has the necessary support and has been responsible in accepting the generous help of her mother, and now the help of her uncle and his wife, who have offered to be a resource at this time and whom Ms. W has allowed to be closely involved in her life and those of her children. Ms. W’s family support provides sufficient additional evidence that her children have not, and likely will not, be placed at risk by their mother’s mental health. As stated in this Court’s 1028 decision, “[i]t is exactly this kind of family support that is critical to allowing people with a mental illness to live independently and become successful parents.” Decision and Order on FCA Section 1028 Hearing, docket no. NN-XXXXX-17, Feb. 6, 2018, p. 5.In its papers opposing Respondent’s motion, ACS argues that “there is an issue of triable fact as to the underlying allegations of neglect that are stated in the petition.” Petitioner’s Opposition to Respondent’s Motion for Summary Judgment, p. 4, para 9. Petitioner fails to specify exactly what this issue is except that “the situation and status of the mother’s mental health condition was different at the time of filing than when the 1028 decision was entered” and then again “even after the decision from the 1028 hearing.” Id. Therefore, Petitioner does not raise any factual issue that remains to be resolved at the fact-finding hearing except for the changeable nature of the Respondent mother’s mental health condition and the potential risk to the children that might result from it. This argument is tantamount to saying that the nature of Ms. W’s mental health diagnosis and condition in and of itself requires a neglect finding. Yet it is precisely such a finding that is precluded by the language of the Family Court Act and the caselaw regarding neglect based on mental illness.It has been well documented that a substantial portion of the population suffers from mental illnesses, many of which are serious and life-long.2 These diagnoses are prevalent in middle-and upper-class communities as well as in poorer communities. However, it is rare to see parents suffering from mental illness charged with neglect in Family Court unless they are indigent. Having family and financial support, including medical insurance that allows access to optimal psychiatric care, are both critical towards managing a serious mental health condition and the presence of these supports is one of the likely explanations for why affluent parents do not often end up as respondents on Article 10 mental illness cases. For example, Ms. W’s income level played a role in her lack of easy access to a second opinion when she questioned Nurse Practitioner’s O’s direction to stop taking her psychotropic medication while pregnant.3When a parent has shown the level of dedication to managing their mental health situation and commitment to following a safety plan supported by family members as Ms. W has, this Court cannot find the causal connection between the parent’s condition and actual or potential harm to the children required by the law.4 See In re Nialani T., 125 AD3d 672 [2d Dept 2015] ( “proof of mental illness alone will not support a finding of neglect; the evidence must establish a causal connection between the parent’s condition, and actual or potential harm to the children”) (internal quotation marks omitted).DISMISSAL OF THE PETITION PURSUANT TO FCA §1051(C) IN THAT NO FURTHER AID OF THE COURT IS NECESSARYThe Court now turns to the second prong of Respondent’s motion which seeks dismissal pursuant to FCA §1051(c) in that no further aid of the Court is required. FCA §1051 relates generally to various circumstances in which courts may sustain or dismiss an Article 10 petition. Section 1051(c) contains two circumstances in which petitions may be dismissed: (1) “if facts sufficient to sustain the petition are not established” or (2) “if, in a case of alleged neglect, the court concludes that its aid is not required on the record before it.” Under either circumstance, the court “shall dismiss the petition and shall state on the record the grounds for dismissal.” Family Court Act §1051(c).The plain language of the statute implies that the “aid of the court” prong may be granted in any neglect case prior to a fact-finding hearing as long as there is sufficient basis for the court’s conclusion “on the record before it.” That record could include the court file, prior court appearances on the case and the affidavits and exhibits attached to a motion. The statutory language further supports this interpretation by referring to cases of “alleged neglect,” indicating that such a motion is not available once an adjudication has occurred. The plain language also establishes that the existence of neglect is not a bar to dismissal under this second prong. Given this statutory language, the legislature clearly intended FCA §1051(c) to preserve the rehabilitative purpose of Article 10 by acknowledging that, even where a parent’s prior actions meet the definition of neglect under the law, the current family situation which is known more fully at the time of the motion may establish that further involvement of the court and the child welfare system is unnecessary.Petitioner has argued that this case should not be dismissed on this ground because the Court’s aid is still needed “to ensure the safety of Johanna and Jaice” and that the safety plan “alone is not enough to keep the children safe.” Petitioner’s Affirmation in Opposition, p. 9-10, para 28-9.5The record in this case consists of the testimony and evidence at the 1028 hearing, the affidavit of the Respondent mother attached to her motion as well as this Court’s considerable knowledge of the case file and numerous observations of Ms. W and her mother, who have appeared before this Court multiple times since the 2017 case was filed. As noted above, this particular record establishes that Ms. W has demonstrated her desire to prioritize her children’s well-being by maintaining her mental health and seeking and utilizing her family support to assist her.In the 1028 hearing decision this Court wrote:The key issue at this hearing is the Court’s assessment of Ms. W’s commitment to maintaining her mental health. The Court found Ms. W to be extremely open and insightful about her mental illness and the process she went through in accepting her diagnosis and recognizing the need to be consistent with her treatment and medication, especially now that she has a child. The Court was impressed with the sincerity of Ms. W’s commitment to maintaining her mental health for the sake of her daughter and unborn child. Ms. W spoke genuinely and touchingly about the joy her daughter brings her, the depth of her love for Johanna, and the lessons she has learned about the importance of nurturing from her parenting skills class as well as her own strong bond with her own mother. The Court was also impressed by Ms. W’s ability to recount her medication history and precise dosages and the ownership she demonstrated over her treatment as well as her lack of defensiveness on cross-examination about her past periods of mental health deterioration….Ms. W demonstrated both commendable self-awareness and commitment to putting Johanna’s needs above her own, by stating that any children she has should be removed if her mental health deteriorated. 1028 Decision, dated Feb. 6, 2018, docket no. NN-XXXXX-17.In deciding whether the aid of Family Court is required, this Court is mindful of the substantial right of parents, including those with mental health conditions, to raise their own children. See Matter of Elizabeth C., 156 AD3d 193 [2d Dept 2017] (“Our analysis proceeds from the fundamental principle that, with limited exceptions,”[a] parent has a ‘right’ to rear [his or her] child, and the child has a ‘right’ to be reared by [his or her] parent.”) (citing Bennett v. Jeffreys, 40 NY2d 543 [1976]); see also Santosky v. Kramer, 455 US 745 [1982]. Ms. W has demonstrated considerable insight into her mental health condition, commitment to maintain her stability and the family support to be there for her and the children if she does not succeed at any point. The children are currently well cared for in their uncle’s home and Ms. Y’s extensive contact with the Court has established her reliability as a safety net for her daughter and grandchildren. Ms. W’s actions around Jaice’s birth, rather than being a basis for neglect, are actually precisely what the law would want a mother experiencing mental health instability to take. The Court has the utmost confidence in Ms. W and her family to make decisions in the children’s best interests and about their care going forward. This Court’s involvement only serves to add unnecessary stress to Ms. W and she has proven her entitlement to move forward in her life without court intervention. Therefore, this Court finds that no further legitimate purpose underlying Article 10 would be served by continuing ACS’s involvement with this family.6 See Kayden H, 104 AD3d 764, 764 [2d Dept 2013]; Eustace B., 76 AD3d 428, 428 [1st Dept 2010] (both cases dismissing where court’s aid not required based on record).Therefore, upon this Court’s careful review of the record which includes the 1028 hearing minutes, court file, papers submitted including exhibits, and arguments by counsel, the Respondent’s motion for summary judgement is granted as to both children as well as her alternative motion to dismiss pursuant to FCA 1051(c) on the ground that the Court’s aid is not required.WHEREFORE, both petitions are dismissed with prejudice. Notify parties.DATE: August 8, 2018
