DECISION & ORDERProcedural History: Aneglect petition was filed 9/2/16 against the Respondent Mother (RM) A H and the Maternal Grandmother (MGM)/Person Legally Responsible (PLR) M C The petition against RM alleged neglect based on untreated mental health illness, failing to take her psychotropic medication and misusing drugs (marijuana and molly) and alcohol without treatment. The petition against the MGM/PLR alleged neglect based on not maintaining a clean home and missing home repair appointment with the New York City Housing Authority (NYCHA). As a result of the allegations, three-year-old Subject Child (SC) K A was remanded to ACS effective 9/2/16 and the Court issued a stay away order of protection against RM on behalf of the SC was issued with a carve out for agency supervised visitation between RM the SC. Visitation was also ordered between the MGM and the SC, which were to start liberal while the SC was at the Children’s Center and then expanded to sandwich visits to begin and end at the agency. The Administration for Children’s Services (ACS) was ordered to explore the Maternal Aunt (MA) K M as a resource who was eventually cleared and the SC was released to this MA.As a result of the SC’s removal, the MGM was granted a 1028 hearing in September of 2016. The Court granted the MGM’s 1028 application and the SC was released to the MGM with various conditions. Subsequently, on 1/11/17, MGM was given an Adjournment in Contemplation of Dismissal (ACD) for nine months that expired 10/10/17. On 4/7/17, RM submitted to the Court’s jurisdiction pursuant to Family Court Act (FCA) section 1051-a and a final Order of Disposition was entered 5/31/17 which included placement of the SC with the MGM with twelve months of ACS supervision (this Order is currently being amended as there cannot be a period of ACS supervision when there is a direct placement) with agency and approved resource supervised visits between SC and RM.On 11/19/18 ACS filed an Order to Show Cause (OTSC) seeking to vacate the Disposition Order issued 5/31/17 and change the SC’s direct placement with the MGM to the MA. The Court denied ACS’s application to vacate the 5/31/17 Disposition Order, but granted ACS’s application to have the SC’s legal status changed from a direct placement with the MGM to the MA.On 12/12/18, the MGM filed a petition seeking a final Order of custody of the SC. The MGM also filed an OSTC seeking a 1028 hearing to have the SC returned to her care. This Court denied the MGM’s application for a 1028 hearing given the procedural posture of the case and the MGM’s lack of standing for such a hearing. The MGM’s counsel sought a stay from the Appellate Division and is awaiting their determination on the Family Court’s denial of the MGM’s 1028 hearing request.On 1/15/19 the Attorney for the Child (AFC) filed an OTSC seeking a 1028 hearing to have SC returned to the MGM’s care which was then withdrawn by the AFC on 1/18/19.This Decision and Order details the Court’s prior denial of the MGM’s 1028 hearing by Order dated 12/12/18 and partially read into the record during the 1/18/19 court appearance.Counsel Positions and Court’s rulings:The MGM’s “Motion 1″ seeking direct placement of SC with MGM or in the alternative requesting a 1028 emergency hearing is denied. MGM’s counsel also opposed ACS’s OTSC seeking a change in SC’s direct kinship placement from the MGM to the MA. This Court disagrees with MGM’s counsel’s position that the SC should be directly placed with the MGM and in the alternative that the MGM has standing and is entitled to a 1028 emergency hearing at this stage of the proceeding. This Court agrees with ACS’s position as further elaborated below. The MGM’s remedy is to file for custody of the SC, which has been done.ACS filed for the change in the SC’s placement for numerous reasons that continue to be ongoing concerns throughout the long history of this case. The issues articulated by ACS included: the MGM not appropriately following through with SC’s asthma condition and medication and instead indicated she was addressing the SC’s Asthma condition with home remedies; failing to provide the Asthma medication to the school despite the school following up with MGM for said medication; failing to respond to the school’s unsuccessfully attempts to communicate with the MGM to address SC’s misbehavior in school; refusing ACS access to the MGM’s home as required; failing to promptly respond to New York City Housing Authority’s (NYCHA) requests to complete needed repairs to the MGM’s apartment (specifically, that the MGM missed approximately 18 appointments). Given all these issues, ACS found that MGM was no longer an appropriate caretaker for the SC.Counsel for MGM responded to ACS’s concerns and indicated the following. Regarding the SC’s Asthma medication, the MGM relied on her daughter, the RM of the pending Neglect matter, to translate and assist with SC’s doctor’s appointments. The MGM misunderstood the doctor’s instructions and failed to pick up the prescription at the pharmacy. On 11/5/18, the SC became sick after being out in the rain, the MGM bathed the SC, gave her tea and an asthma pump. On 11/6/18, the SC became ill again after developing a fever, the MGM called the RM to accompany them to the hospital and gave the SC some Tylenol for the fever. When the RM failed to timely appear and after the SC vomited, the MGM took SC to the hospital where the SC suffered an asthma attack. Because of the asthma attack, the SC was hospitalized and released after two days. The MGM explained that she never kept asthma medication from the SC. As to the allegations that the MGM gave the SC “shark oil” to treat the asthma, counsel argues that this must have been a misunderstanding between the child protective specialist (CPS) and the MGM due to a language barrier. The MGM maintained that she actually told the CPS that she gave the SC “vicks vapor rub”, not “shark oil” and explained that these two medical treatments sound very similar when stated in Spanish. As to the NYCHA repair and lack of access, the MGM maintains that the repairs are almost complete and it is NYCHA that fails to keep confirmed appointments. As to giving ACS access to her home, the MGM indicated that between all her own appointments and that of the SC, it is a challenge to make them all or be where she is directed to be by ACS. Finally, regarding the school misbehavior and sexualized behavior (scratching her private parts area) it was because the SC developed a rash from an allergic reaction to a soap the MGM had purchased. The MGM took SC to the doctor and after complying with the medical treatment, the rash subsided as did the sexualized behavior. As a result of the SC living with MGM for much of her life and since she was deemed SC’s guardian, she is entitled to 1028 if SC not released back to her care.The AFC did not file a response to either OTSC but did confirm with the SC that she preferred to live with the MGM instead of the MA. AFC also confirmed that the MGM and the MA live in the same NYCHA building.ACS opposed the MGM’s arguments and maintain that she is not a party to the proceeding any longer as the ACD against the MGM under the Neglect docket has since expired. The school was unable to get in touch with the MGM to get the SC her asthma medication/pump, which as of 1/18/19 the MGM had not provided to the school. When ACS made a home visit, there were no Asthma pumps in the home.This Court is not persuaded by the explanations given by the MGM to justify her non-compliance with the issues and concerns raised by ACS. The Court denies the MGM’s applications and grants ACS’s application to have the SC placed with the MA pending further proceedings. Given the posture of the proceedings, post-finding and post-disposition, any application to change, amend or modify any existing Orders are to be considered pursuant to Part 6 of Article Ten of the Family Court Act (FCA). For example, section 1061 allows for staying, modifying, setting aside or vacating orders; section 1062 allows for motions to terminate placement, which can be brought by “any interested person acting on behalf of a child placed…” Matter of Elizabeth C., 156 A.D.3d 193 (N.Y. App. Div. 2nd Dep’t. 2017) simply does not apply to this set of facts. There, a temporary order of protection excluded the father from his home following sexual abuse allegations against the father. That Court settled the issue of whether a 1028 emergency hearing was warranted when the SC were not removed from home but a parent was excluded by operation of an order of protection and the Court unequivocally said yes, a 1028 hearing is required under those circumstances.In this case, the MGM was granted a 1028 hearing during the pre-finding phase of this matter and she was granted her application at that appropriate juncture. She now seeks to modify an Order post-disposition, which is properly done pursuant to Part 6 of Article Ten. In the alternative, as she has already done, file for custody. Additionally, the issue for this Court to consider at this stage of the proceedings is not imminent risk as required under a 1028 analysis, but rather best interest of the SC.Finally, ACS requests that the final Order of Disposition issued 5/31/17 needs to be corrected because since the SC was directly placed with the MGM, a twelve-month period of supervision should not have been also ordered. The Court had the opportunity to review the recordings for the 5/31/17 court appearance when the final Order of disposition was entered. The parties all consented to a 12-month period of supervision for the RM and directly placed the SC with the MGM. This period of supervision has since expired. If the parties want the original 5/31/17 final Order of Disposition corrected, which this Court does not see the need to do so because the supervision period has lapsed, please provide a short Order on consent and the Court will consider the application by the parties.The Court’s Oral Decision, made 12/12/18 and again 1/18/19 on the record, is hereby made a part hereof and is incorporated herein to this Written Order. The Court orders that the transcript of such Oral Decision be included and attached to this Written Order.PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.Dated: February 8, 2019Check applicable box:Order mailed on [specify date(s) and to whom mailed]:____Order received in court on [specify date(s) and to whom given]:____
