Procedural History and Factual Background This Court held a contested emergency hearing pursuant to Family Court Act §1027 (“1027″) after the Administration for Children’s Services (“ACS” or “Petitioner”) requested a removal of the two subject children from the Respondent mother, Ms. G. The Court held the 1027 hearing beginning on October 24th and ending November 12th. During the course of the hearing, the child Kanan, age 2, remained in the care of his non-respondent father, Mr. O, and the infant, Joshua, remained at the home of his paternal grandmother, Ms. F. After a successful fully-supervised visit on October 25th, the mother began having sandwich visits with some unsupervised time the following week which were also successful. Finally, the Court granted 6 hours of unsupervised time for several days over the past weekend. There have been no issues during these visits with Ms. G’s care of either child. ACS and the Attorney for the Children (“AFC”) oppose their release to their mother based on her unreliability as a caretaker at this time and cite her lateness in picking the children up for visits as further evidence of this. Prior to October 24th, the children had resided either fully or partially in their mother’s care. Ms. G was originally a non-respondent on a neglect petition filed against Joshua’s father, Mr. F, on July 26, 2019 which involves allegations of domestic violence against her, specifically that Mr. F punched her in the presence of both small children. At ACS’s request, Joshua was released to his mother and Kanan jointly to both of his parents with ACS supervision. Kanan’s parents had a previously-entered order of joint custody that allowed each approximately half of the week with him. ACS filed this second neglect petition on October 23rd, this time against the mother alleging neglect based on Ms. G’s failure to provide adequate supervision or guardianship. Specifically, the petition alleges that she left Kanan with his father since early September without having any contact with the father or the child and that she left Joshua with his paternal grandmother for approximately the same amount of time also without any contact until October 2nd when she apologized for disappearing but still did not take the child back. Additionally, the petition alleges that the caseworker had been trying to assist the mother with entering PATH in mid-September but was not able to make contact with the mother by phone. At the hearing, the Administration for Children’s Services (“ACS” or “Petitioner”) called the investigating ACS caseworker and the non-respondent father, Mr. O. Ms. G testified on her own behalf. The Court will briefly summarize the testimony as it was not extensive. Caseworker Ramjit’s testimony essentially supported the allegations in the petition and expanded on her efforts to assist Ms. G in entering PATH. Ms. Ramjit made clear that she had no concerns about the care the children received while with their paternal relatives. Ms. Ramjit never expressed any concerns about Ms. G using alcohol or any illicit substances. Kanan’s father, Mr. O, verified that Kanan was in the care of himself or his family during the period alleged in the petition and that Mr. O was hospitalized during much of that time. He testified that Ms. G did contact him in early October and apologized for “not being in Kanan’s life” for during that period and said she was “working on bettering herself so she could be a better parent.” She did attempt to take Kanan back at one point but Mr. O would not allow it given that she did not have a stable residence but did encourage Ms. G to visit her son. Mr. O testified that Ms. G did not visit but did text and call him to see how Kanan was doing. Ms. G testified that her sons are now ages 9 months and 2 years and that she is 21. She had previously been living with her mother when the original petition was filed but her mother obtained an order evicting Ms. G from the apartment. She had tried to enter PATH in July but they initially wouldn’t allow her to have Kanan on her shelter case because he was listed on his father’s case and he also resided in the shelter system. She acknowledged not following through with PATH on the date set by the caseworker and then had no contact with the caseworker in the period since. However, Ms. G testified that she had obtained a shortterm 40 hour per week retail job starting in August and ending on October 8th where she was being paid $17 per hour. She also described her involvement at The Door community services center which had helped her obtain the job, work towards her GED and learn independent living skills such as money management while also providing her with a paid internship. At the time of her testimony on October 25th, Ms. G had just obtained a new job as a stock specialist at the Metro Museum. Ms. G testified that she realized she had made a mistake in not maintaining contact with her children and would do anything necessary to get them back including commit to entering a family shelter through PATH immediately. Legal Analysis Family Court Act §1027 states, in relevant part: In any case under this article in which a child has not been removed from his or her parent, any person originating a proceeding under this article may apply for a hearing at any time after the petition is filed to determine whether the child’s interests require protection, including whether the child should be removed from his or her parent or other person legally responsible, pending a final order of disposition. Such hearing must be scheduled for no later than the next court day after the application for such hearing has been made. Upon such hearing, if the court finds that removal is necessary to avoid imminent risk to the child’s life or health, it shall remove or continue the removal of the child. (emphasis added). In Nicholson v. Scopetta, the Court of Appeals stated that “[i]mminent danger must be near or impending, not merely possible,” and required that the Family Court “weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal”, 3 NY3d 357, 369, 378. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim.” Id. The evidence was clear on the following issues: Ms. G who just turned 21, has two very young children, one of whom she was left to care for on her own when she became a victim of domestic violence in July at the hands of Joshua’s father. She was apparently taking adequate care of both children as of that time such that ACS did not request to remove them from her and did not file a petition against her. It was only after Ms. G did not follow the order to enter the shelter system and instead left each child with a paternal family member without maintaining adequate contact that ACS sought this change to the children’s status. The Court credits that Ms. G left the boys with their family members because she was trying to create a better life for them by focusing on earning money at a short-term full-time job she had obtained in August. She was also seeking to improve herself by attending classes at the Door community service center which provides a variety of beneficial services for young people. It appears that Ms. G did not feel she could manage the job and her services while balancing the care of two very young children without added support from her own family, which she lacked. The Court finds it important that Ms. G exercised good judgement in the caretakers she chose to leave the boys with, one of them being the father, and was correct to believe they would take good care of them even if Ms. G did not provide additional necessities beyond a WIC card for Joshua. There is nothing wrong, or neglectful, with the mother’s modifying the parenting time schedule with Kanan’s father or relying on Joshua’s grandparent at a time when she needed more coverage because of work, school or simply coping with the after-math of domestic violence. The issue is that Ms. G did not clearly communicate her needs in making arrangements with each caretaker and then did not maintain regular contact with the children or their caretakers while she was gone. A “failure to plan” such as is alleged here, may or may not be a basis for a neglect finding. See Matter of Zahir W., 169 AD3d 909, 910 [2d Dept 2019] (“Although the mother failed to pick up the children from the aunt in the beginning of October 2016, as agreed, there was no evidence that the children were not being well-cared for by the aunt” and thus “ACS failed to establish that the mother neglected the children.”); In re Kymani H., 152 AD3d 519, 520 [2d Dept 2017] (Neglect finding reversed where “the child voluntarily left the mother’s home to live with two individuals who were not biologically related to the child, but who had assumed the roles of the child’s father and grandmother since the child was 18 months old [and] [w]hile living with these individuals, the child’s needs were met and the mother spoke with the child and his caretakers [several times] per week.”); Matter of Justelle R., 60 Misc 3d 1211(A) [Fam Ct 2018] (“Sometimes adult children take advantage of their parents’ open hearts and goodwill, knowing that their own children will be okay with the grandparents. Such behavior may be wrong in the moral sense, and it may even fall below the minimum standards of parenting under the law. However, if the children are not harmed as a result and not in imminent danger of harm, it is not neglect as defined by law.”). Clearly, Ms. G misjudged in thinking that this plan was in the best interests of her children, even though, in her mind, she sought to “better herself” for their benefit. However, the Court is cognizant of Ms. G’s young age and brain development in making this decision and credits her testimony that she has learned from her mistake. Ms. G has demonstrated her intention to prioritize her children’s needs by availing herself of the visitation the Court has ordered while this hearing has been on-going which has allowed her to have lengthy unsupervised time with the children without any safety concerns. As a result, neither ACS nor the AFC is objecting to the Respondent mother having full day unsupervised time with her children. The issue at this hearing is not whether ACS has or can establish neglect but whether at this moment in time, the children would be at imminent risk if Ms. G’s time with each is restored to where it was before this new petition was filed. The Court finds that ACS has failed to establish that this risk currently exists. Under Nicholson, the Court must balance the risk of harm to the boys if they were returned to their mother against the backdrop of the harm of their continued removal. The harm suffered by Kanan was apparent in the report of ACS which indicates that he cried every time his mother left him at the end of each court-ordered visit. For Joshua, who is only 10 months old, the loss of daily bonding time with his mother is critical and significant. Against those clear daily harms is ACS’s speculation of the harm if Ms. G were to repeat her past mistake and leave her children with other caretakers without an adequate plan for regular contact. It is of course this Court’s hope that Ms. G has learned, as she insists she has, from this mistake and will not repeat it. However, it is significant that even when the mother left her children in August, she left them in the care of loving relatives, a father and a grandmother, whom she knew would take good care of them. Therefore, the risk to the children, even if this mistake was repeated, is negligible in comparison. As a result, the Court finds that there is no sufficient proof of imminent risk that cannot be ameliorated by orders of this court as required by FCA §1027. Therefore, the child Kanan will be released to both of his parents with ACS supervision as set forth in the pre-existing custody order, and the child Joshua will be released to his mother with all the following additional conditions: The Respondent Mother must: 1) enter PATH with both children, assisted by ACS; 2) comply with the pre-existing shared custody order for the subject child Kanan and his father 3) comply with in-home preventive services, including any recommended counseling; 4) enforce a full stay away order of protection against Mr. F except for ACS-supervised visits with Joshua; 5) only leave the children with caretakers approved by ACS and ensure any caretaker can contact the mother if needed and that the children are picked up on schedule. ACS is directed to assist the Respondent mother with entering PATH, if needed. Dated: November 12, 2019
