The Court conducted a hearing pursuant to Family Court Act §§1027 and/or 1028 regarding the status of the children in this case, as Mr. S. wanted them in his care and ACS and Ms. B. wanted them in their mother’s care.1 The hearing took place on June 26, July 2, and July 8, 2019. The record consisted of petitioner’s exhibits 1A-C; 2 and 2B; 3; 4A-K; and 5-8; respondent’s exhibits Ex A; B1-2; and C-F; and the testimony of Ms. B. and Mr. S. For the reasons that follow, including the credibility determinations noted below, the Court finds that the children would be at imminent risk of harm to be in the care of their father at this time, that no protective order short of removal would ameliorate that risk, and that this risk outweighs any harm to the children of removing them from their father.When this case was first filed on June 25, the Court was dubious about ACS’s position, as the initial investigation appeared one-sided in favor of Ms. B.; the available documentation suggested the background in the family was confusing at best; and a jurist had given an ex parte temporary order of custody of Olivia to Mr. S. less than a week before. The circumstances of that temporary order of custody seemed noteworthy. It had been entered after the jurist had assigned an attorney to represent the seven-year-old and the attorney presented the child’s position on the record; the jurist was also aware that Ms. B. had filed a family offense petition against Mr. B. in Richmond County one day before.However, the more complete record developed at this hearing tells a very different story; the Court now not only understands ACS position but endorses it completely.The foundational fact creating imminent risk of harm to the children is that Mr. S. perpetrated an act of serious, alarming intimate partner violence on Ms. B. in front of both children on June 10, 2019. The Court finds Ms. B.’s testimony about this incident credible. She was laying on a bed napping with three-year-old Sophia when Mr. S. woke her up, angry and talking about other men. Ms. B. said, in effect, “You know what, this is not working” — meaning, her latest attempt to reconcile with him — “[so] let’s just co-parent.” In response, Mr. S. jumped on top of her and strangled her to the point where she felt she could not breathe. Sophia woke up, Olivia came in from another room, and both children saw their father violently attacking their mother. Ms. B.’s testimony was consistent with her sworn statement in her Richmond County family offense petition filed June 20; what she told the police on June 21 (Ex. 1B); and the story she told ACS as recited in the instant neglect petition filed June 25. Her testimony was also corroborated by Sofia statements to ACS (Ex. 2B at 5; Ex. 5 at 10).Ms. B.’s testimony rings true for another reason. It is amply, overwhelmingly corroborated by an extensive documented history of intimate partner violence perpetrated on her by Mr. S. First and foremost, in 2014 Mr. S. was charged in Orange County, Florida, in connection with a violent attack on Ms. B. when he held a knife to her throat while she was pregnant with Sofia. (Ex. 2B at 3-4; id. at 15; Ex. 3; Ex. 5 at 7.) The arrest charges were aggravated battery on a pregnant person (a second-degree felony under Florida law; Fla. Stat. §784.045.1a1) and aggravated battery/domestic violence/use of a deadly weapon (also a second-degree felony; Fla. Stat. §784.045.1a2). He pled guilty to a charge of felony battery causing great bodily harm (a third-degree felony; Fla. Stat. §784.041.1), and was sentenced to 357 days of incarceration. (Ex. 3.)In addition to the Florida incident, when the family resided in California there was a court order limiting him to supervised visits (Ex. 4B). There was also a two-year final order of protection entered by Kings County Criminal Court, dated May 17, 2016 (Ex. 6), directing Mr. S. to stay away from Ms. B. There have also been many reports to law enforcement over the years the family has lived in New York, as discussed later in this decision. It should also be noted that Mr. S. has been violent and/or threatening to others, including his own father (Ex 4A) and the mother of his other children, Marsha V. (Ex. 4G).The Court finds Mr. S.’s testimony — in particular his narrative that the June 10 incident never happened because Ms. B. was not even at his home — not credible. The timeline he provided under oath to the custody jurist on June 21 in connection with his application for temporary custody of Olivia contradicted his testimony at the imminent risk hearing. To the custody jurist, Mr. S. swore that Ms. B. had dropped the children off with his friend (Ex. 7 at 4), and that they had been with him ever since; according to his testimony in this imminent risk hearing, the date was May 17. He went on to testify before the custody jurist that he let Ms. B. stay with him too because she was homeless; they got into an argument over her disciplining Olivia; and the following day she took a bunch of stuff from his house and left with Sofia. (Ex. 7 at 10.) The date she allegedly stole from him, he said, was June 18. (See also Ex. E.) He made no mention to the custody jurist that Ms. B. had left his home prior to June 10; the Court finds that he only shifted his testimony for the purposes of this imminent risk hearing when he had to deny having assaulted her that day.The Court does credit that Ms. B. was unstably housed, tried to get into PATH, and was rejected for family shelter (probably because DHS told her she could live with her own mother); she was desperate and asked Mr. S. to take her in around May 22 (Ex D). But the Court rejects Mr. S.’s testimony that Ms. B. left on June 4 and came back on June 16. As he had the screen shot of her desperation in May (Ex. D), one would expect him to have similar documentation of June 16. It is all too convenient that he claims she was gone during the period when the two incidents she alleges occurred and that when pressed to explain details, he offered that “I have a very bad memory.” (S. testimony.)There are other aspects of Mr. S.’s sworn testimony that are contradicted by the record, casting doubt on his overall credibility. For example, he swore under oath to the custody jurist and at the imminent risk hearing that he saw Ms. B. hit Olivia (Ex. 7 at 5; S. testimony), but Olivia denied that to ACS (Ex. 5 at 9). This Court discounts the position Olivia’s attorney took in front of the referee, as the attorney acknowledged that it was the product of a very quick interview, the child seemed confused, and the information the child provided was confusing as well. (Ex. 7 at 12.) Additionally, Mr. S. swore under oath that he noticed his personal items were missing from his house after he took Olivia to school on June 18 (Ex. 7 at 11; Ex. E), but Olivia was absent from school June 17 to 19 due to foot pain (Ex. 5, attachment; Ex. 2 at 7).2 Finally, when the custody jurist asked him if ACS was involved, he acknowledged that there was a note with a case identification number left under his door, but he lied when he said that he called the number on the note and was told by ACS that the agency does not slide notes under doors and that they do not use case ID numbers. This Court is aware of common ACS practices during child protection investigations, including the practice of sliding a “notice of existence” under the door of a subject’s residence if there is no answer; see also Soc. Svcs. L. §424(6); 18 N.Y.C.R.R. §432.3(j). The Court is also aware that OCFS and ACS use case number identifications to track specific investigations. Essentially, the Court concludes that Mr. S. was claiming before the custody jurist that Ms. B. was forging ACS documents, an abject lie. (Ex. 7 at 12)Having found that the June 10 incident happened in the manner Ms. B. described and that Mr. S.’s denial is not credible, the Court must still assess what meaning this fact has regarding the risk to the children to be in their father’s care at this time. Sometimes in domestic violence cases the imminent risk comes from the children being in the zone of danger only; sometimes a violent parent can still provide safe, even outstanding care, to children (even if the parent lies under oath about the violence). In these cases, sometimes forcing the parent to stay away from the person towards whom they have been violent can sufficiently mitigate the risk to permit the children to remain with that parent, so long as it can be guaranteed that the parent will not be near the victim while caring for the children.Here, there are two independent, interrelated reasons why an order of protection directing Mr. S. to stay away from Ms. B. is not sufficient to mitigate the risk to the children from being in his care, and indeed why his visitation with them must be supervised for now.First, this is a coercion-and-control type intimate partner violence case, with a long, documented history of many incidents of physical violence plus emotional manipulation. It is the emotional control that Mr. S. has exerted and seeks to continue to exert over Ms. B. that makes him especially dangerous to her and to the children; his need to control her makes the risk that he will violate an order of protection unacceptably high. He has a history of directing degrading comments at Ms. B. (See, e.g., Ex. 4I.) He exhibits irrational jealousy which sets off tirades of anger and attempts to control Ms. B. through physical intimidation. (See, e.g., Ex. 4H.) He has broken her phone or other personal property when he suspected that she was in communication with other men, including on June 6 (B. testimony). In doing so, he intends to cause emotional pain, saying, “I read online that when you break someone’s phone, it is like taking away a family member or a family member has died.” (Id.) Less than nine months after being released from jail in Florida, he harassed and threatened her when he thought she was having sex with the man bagging groceries at the supermarket. (Ex. 4I.)Mr. S. acts on an inappropriate belief that Ms. B. belongs to him. In the course of assaulting her, he says things like, “Every female gets beat by their kids’ father, you are not special” (B. testimony) and “it is your fault that I slapped you” (Ex. 4I). He threatens to kill her if she dates someone else, asserting that she remains his girlfriend even when she has broken up with him. (Ex. 4H.) Both the June 6 and June 10 incidents were triggered by his belief that she was talking to someone else, putting her and the children in significant danger.3In another demonstration of Mr. S.’s manipulative style of intimacy, he repeatedly makes himself out to be the victim, even though he is the one who has perpetrated the violence (S. testimony; Ex. 8 (regarding the June 26 visit)).Many times over the course of their long relationship, Ms. B. has tried unsuccessfully to leave Mr. S. She attempted to do so by moving to California when Olivia was a baby (Ex. 2B at 15; Ex. 5 at 7). In 2014, she had to call the police after giving him “many chances” (Ex. 4C). Then again in 2018, she tried to escape him by moving to Ohio with the children (Ex. 5 at 7). As reported to ACS by Ms. B.’s mother, this pattern has repeated itself many times over the years; Ms. B. is afraid of Mr. S., she tries to leave him, but he always finds her (Ex. 5 at 8).4 Even a conviction for felony assault and jail time did not remedy the situation on either end. It did not make him repentant, and she still kept going back to him.In some ways, Ms. B.’s decision to leave the children with him in May (Ex. A) could be seen as another example of her trying to separate from him. After many failed attempts to leave him and take the children with her, she may have concluded that the only way she could be safe herself would be to let him have the children. This was certainly not the best decision, either for the children or for her, but it is a better explanation than Mr. S.’s theory that her actions mean that Ms. B. does not think children are unsafe with him. And she ended up returning to him yet again (Ex. D), out of desperation.Ms. B.’s behavior, which Mr. S. paints as unstable and disruptive to the children, is explained by her history of victimization — by him. She bears responsibility in part, but when analyzed through the coercion/control lens, her behavior is consistent with victimization and reflects her pattern of attempting to reconcile when she cannot fully and safely separate from him. The most recent incident was June 10; her failure to report it for over a week is explained by this simple observation: the June 10 incident was triggered by her saying, “This is not working” (B. testimony). In other words, she expressed the sentiment that she wanted to leave him once and for all, and he responded by trying to kill her.Second, Mr. S. is weaponizing the children. He puts them in the middle of the conflict between him and their mother, influencing them to see their mother as the blameworthy party and to see him as the victim. For example, Olivia defended her father’s violence, telling Ms. B., “Just stop talking to other men and he won’t have to fight you” (B. testimony). He tells her to distrust law enforcement and civil authorities, instructing her that “police officers trick people” (Ex 2 @ 15).5This type of behavior has been going on for years. One day in 2014, Ms. B.’s sister was babysitting for Olivia but needed to go to work. She called Mr. S. and asked him to pick up Olivia from her house. He got mad and made a false allegation of child abuse, shamelessly privileging his own emotional need to manipulate over the well-being of his child. (Ex. 4E, 4F.)Mr. S.’s behavior and comments at the visit at ACS on June 26 (Ex. 8 at 2-3) exemplify how he is using the children to continue his attempts to dominate Ms. B. During that visit, in response to simple questions posed by Olivia, he repeatedly blamed Ms. B. for all his problems, despite being redirected by ACS staff each time. It was Ms. B.’s fault that Olivia wasn’t living with him; Ms. B.’s fault that they had to visit at ACS; Ms. B.’s fault that they could not go get ice cream. He called his friends the V.’s (whom he has proposed as visitation supervisors) in the middle of the visit and started crying; he then told Olivia that it is Ms. B.’s fault he is crying. He told Olivia that ACS worker had lied when she told Olivia that Ms. B. had gone to get McDonalds food for her and Sophia; when the visit was over and Mr. S. left, Ms. B. came back — with McDonalds food for the children. (Id. at 3-4)All of these findings contribute to the Court’s determination that the children would be at present, imminent risk to be in the father’s care. The Court has no confidence that he will obey an order of protection, whether children are with him at a given moment or not. His denials and prevarications contribute to this conclusion. It might be one thing if he had acknowledged the Florida conviction and said “I am changed” and argued that Ms. B. is taking advantage of his past record to make up lies about him now, but his theory is undermined by his refusal to acknowledge any wrongdoing at all.While Ms. B. bears responsibility for not taking more assertive steps to leave him sooner — and if she reaches out to him affirmatively, she could end up becoming a respondent and possibly losing custody to a third party — the Court is concerned that if he has the children, Mr. S. will use them as weapons by withholding visitation and goading Ms. B. into coming to his residence to see them, walking into a very dangerous situation.Nicholson v. Scoppetta, 3 NY3d 357 (2004), teaches that the Court must balance the imminent risk to the children in the care of the respondent against the harm to them of not being in his care. Here, the alternative to releasing the children to the father is to instead release them to their mother, who is not a respondent, and the balance of harms is overwhelmingly in favor of the children being with Ms. B. This would not be a placement in foster care or with a third party. Moreover, it appears to the Court that notwithstanding the temporary order of custody that Mr. S. had for Olivia (which was only granted on June 21), prior to May 2019 Ms. B. was actually the primary custodian for most of the children’s lives, certainly for those periods when the parents were not living together. The children can maintain their relationship with their father by having appropriately supervised visitation, and remain safe while living with their mother. While a nice, appropriately furnished apartment (Ex.’s B1, B2, C) is better for the children than life in a domestic violence shelter, the touchstone in this hearing is not the material comforts of each parent’s residence, but rather whether being with their father would pose an unacceptable risk of harm. On that score, the balance of harms favors the children being with Ms. B. That Olivia has a positive attachment with her father does not change this calculus.The release of the children to Ms. B. will be under strict conditions to address her instability and the reality that her recent steps to make a final break from Mr. S. are just that, recent, and she needs support and monitoring to ensure she does not go back to him and put the children at risk. The Court is concerned if she is texting him even after being allocuted regarding the interim status order on June 27; she has been re-allocuted today. But on balance the children are far more at risk to be with him than to be with her, and she is not a respondent.Therefore, IT IS HEREBY ORDERED THAT:1) The children are temporarily released to the care of their mother Krystal B., the Court having found her to be a suitable parent pursuant to Family Court Act 1017 and she has submitted to the Court’s jurisdiction. This release is under the following terms and conditions. Ms. B. is directed to:a. Cooperate with ACS supervision and preventive services, including cooperating with announced and unannounced visits and signing all releases necessary for herself and the children.b. Cooperate with the reasonable requests of the attorneys for the children to see them.c. Cooperate with Mr. S.’s visitation, as set forth below or as may be ordered from time to time.d. Keep ACS informed of her whereabouts and any change in contact information.e. Report immediately to law enforcement and ACS any violation of the order of protection by Mr. S.f. Refrain from leaving New York City with the children, absent written authorization of ACS or Court order.g. Refrain from contacting Mr. S. or attempting to see him in any fashion.h. Ensure the children are up to date with all medicals including mandatory vaccinations.i. Refrain from leaving the children alone or unsupervised at any time.j. Utilize only ACS-approved caretakers (including camps and day care facilities) for the children.2) Mr. S. shall have visits as follows:a. Agency supervised.3) ACS shall:a. Use the domestic violence protocol in scheduling all supervised visits.b. Make an immediate referral for Mr. S. to the SCO Fatherhood program or a similar provider for comprehensive services on his service plan, if not already done.c. Investigate all visitation resources and babysitting resource who are proposed.d. Refer Olivia for therapy, if not already done.Dated: July 8, 2019
