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Court Rules on Neglect Petition

A mother of a boy, now age seven, has been the subject of child protective proceedings since he was ten- weeks-old. The boy is currently placed in foster care as a result of the most recent order of disposition issued by the Court against his mother, the Respondent.

A New York Family Lawyer said the mother has volunteered to participate in an instructional film being produced by her attorneys and has consented to the filming and participation of the boy as well. The Legal Aid Society, representing the boy and the Administration for Children’s Services (ACS) oppose such filming and have asked the Court to find that the use and dissemination of the boy’s image and identity is against his best interests and should be prohibited. For the reasons that follow, the Court conducted a hearing to determine whether the mother’s consent to the filming of her son should stand or whether her consent must be overridden.
The Respondent-mother was first brought before Bronx County Family Court after ACS filed a child neglect petition in October 2004, naming the boy as the subject child. The boy was a ten-week-old infant at the time of the filing. In June 2005, the then-presiding judge awarded the mother an Adjournment in Contemplation of Dismissal (ACD), pursuant to Family Court Act. The mother successfully completed the requirements of the ACD and the case was dismissed by operation of law in May 2006.

A New York Custody Lawyer said the current neglect petition was filed against the mother on October 3, 2008. In this case, the mother was charged with having neglected the boy, then four-years-old, by abusing marijuana while her son was in her care and not regularly participating in a drug treatment program. The petition further alleged that the mother, who was residing with the boy in a group home for teenage mothers, frequently left the program without permission for days at a time, sometimes leaving the boy with no provisions and other times taking him with her. In addition, the petition alleged that the mother sometimes left the boy in the care of her mother who also had a history with ACS and who, according to the petition, admitted having abused crack cocaine in August 2008. Finally, the petition alleged that the mother told ACS that she wanted to place the boy in foster care because she could not care for him.

A Bronx Family Lawyer said the boy was remanded to foster care on October 3, 2008. The presiding judge found that it was contrary to the boy’s welfare to parole him to his mother’s care and that to do so would place the boy in imminent risk to his life or health. The judge further found that there were no actions ACS could have taken at the time to avoid the need of removal in that the mother articulated her desire to place her son in foster care because she could not properly care for him.

The boy remained in foster care for several months while the mother entered a residential drug treatment program. The case was transferred and was first heard by the Court on September 16, 2009. On that date, the Court learned that the mother was fully compliant with her program and had been drug and alcohol free for upwards of ten months. The Court indicated that, upon the consent of all counsel, and upon the mother’s continued compliance, it would award her second ACD.
On February 3, 2010, the Court granted a parole of the boy to the mother conditioned on her complying with ACS supervision and residing with her son in a parent-child residential program. On consent of all parties, the judge awarded the mother an ACD for a period of twelve months. The conditions of the ACD required the mother to reside with the boy in the parent-child program until she completed it, to remain compliant with an aftercare/drug relapse prevention program, and to comply with ACS supervision and reasonable referrals.

On August 17, 2010, ACS filed a petition charging the mother with violating the terms and conditions of the ACD. Specifically, ACS charged that the mother repeatedly left the parent-child program overnight without permission and without informing the program of her whereabouts. The petition further alleged that on those occasions, she left the boy there, making the program responsible for his well-being. In addition, the petition alleged that she repeatedly violated the program’s curfew. She was further accused of failing to administer the boy’s medication, not taking him to play and family therapy, not attending her own therapy, and not complying with her relapse-prevention program. The Court ruled that it was contrary to the child’s welfare to continue a parole to his mother and that to do so would place him in imminent risk to his life or health. The boy was remanded and placed in foster care for the second time.

A Bronx Custody Lawyer said the disposition resulting from the finding of neglect was entered. Pursuant to Family Court Act, the boy was placed in child custody of ACS to remain in foster care. The mother was required to participate in family therapy with the boy, complete a parenting skills course for children with special needs, and comply with ACS supervision and reasonable referrals. The Court granted leave to ACS, without having to return to court, to begin a trial discharge, pursuant to Family Court Act, meaning that the boy, while still residing in foster care, could be released to the mother on a trial basis.

The next permanency hearing was conducted and a permanency goal of returning the boy to his mother was again approved. No concurrent plan of adoption was ordered. The boy continued to reside in care. On February 29, 2012, ACS filed an Order to Show Cause seeking to modify the order of disposition and limit the mother’s visitation due to her alleged failure to visit consistently with the boy.

A documentary Film Company hired by The Bronx Defenders wrote to the Clerk of Bronx County Family Court on March 30, 2012, seeking permission to film the May 1, 2012 court session scheduled in the instant case. In determining The Bronx Defender’s application entitled Determination of the application, instructs the presiding judge to conduct inquiry and review. Where the proceedings involve a child, a prospective witness or a party, and there is an objection to such video coverage, the court may hold conferences or conduct any direct inquiry, as needed.

During the April court sessions, The Bronx Defenders clarified the purpose of the video application and the origins of the video project. According to the mother’s attorneys, The Bronx Defenders received a grant from the United States Department of Justice to be used, in part, to train public defender offices throughout the nation about their model of holistic defense. The Bronx Defenders described the holistic defense model as a protocol in which they assist clients with criminal, family, housing and other matters through legal representation, social work involvement and parent advocacy, always addressing the relationship between all of these areas in a client’s life.

While neither the boy’s Legal Aid attorneys nor ACS objected to a training video conceptually, concerns were voiced about the publication of the child’s name, as well as the names of caseworkers and foster parents, and how such publication would affect the privacy and safety of those individuals.
The Court permitted the Film Company to film or photograph the May 1, 2012 court session under the conditions that no facially identifiable photographs or videotape of the child could be taken or used in any way and that any mention of the names of the child, case workers, attorneys or members of the attorney’s staffs be redacted and that no filming of any written order of the Court or any writing containing a caption of the case was permitted.

At the May 1st session, ACS deemed its Order to Show Cause seeking to change visitation and modify the November 18, 2011 disposition order satisfied, asserting that it no longer sought to modify disposition. On consent, the temporary order of visitation for the mother and the boy permitting weekend overnight visits was extended and modified to permit

During the Court’s session with counsel, The Bronx Defenders disclosed its discovery that the Film Company had already filmed several hours of the mother’s interaction with the boy during the weekend visitation. The Bronx Defenders, ACS and the Legal Aid Society did not know the boy was filmed until the possibility was raised by ACS in the midst of reviewing the application to film in court. This had prompted an investigation by The Bronx Defenders who then confirmed that the Film Company, with the mother’s consent, had filmed her and her son during court-ordered unsupervised visitation. The Bronx Defenders stated that they were unaware of the Film Company’s actions and recognized that a better course would have been for the contractor to ask about filming the boy first. Had they been aware of the Film Company’s actions, The Bronx Defenders stated they would have alerted fellow counsel, recognizing that the boy was a child in foster care and a child represented by an attorney.

On this last point, the Court pondered whether filming the boy with his mother at a visit could adversely affect him later in his life. The Court indicated that it did not want the boy to become the face’ of a child in foster care. The court raised concerns that when the boy is older, having been in a film depicting his time in foster care and depicting visitation with his mother, could be embarrassing or even hurtful. In the same way that judicial opinions protect the identity of children by not publishing their full names, and in the same way that in the instant case the Court prohibited the use of the boy’s image and name in the videotaped court session, here the Court must determine what steps are necessary to protect the boy’s privacy from being invaded by the training video.

The Court ordered The Bronx Defenders to distribute the film to all counsel for their review and prohibited any further filming of the boy absent specific permission from the Court. Further, the court prohibited the dissemination of the video absent further court order.

ACS articulated its clear understanding that a parent does not lose all decision-making authority regarding her child merely because that child is in foster care. ACS opined, however, that there are instances in which, after a hearing, a court can grant an application to override a parent’s consent, or refusal to consent, to an action regarding a child in foster care. ACS and the Legal Aid Society each asked the Court to hold such a hearing on their respective clients’ behalf.

When the rights and wishes of a parent, a child and the government are at odds, the interested parties are entitled to a full evidentiary hearing. In the case at hand, due to the competing interests of the mother, a parent with the authority to make decisions regarding her child, ACS, the agency responsible for the supervision and guardianship of the boy while in foster care, and the boy, a child represented by counsel who enjoys individual rights, an evidentiary hearing is warranted. At such hearing, the Jurist will determine whether it is in the boy’s best interests to permit his appearance in the film or whether his best interests require the Court to override his mother’s consent.

The Court draws no negative inference against the mother for her decision to permit the boy to appear in the film. The Court further declares that whatever its ruling about the use of the boy’s image and name in the training video, such ruling will have no impact on the Court’s determination regarding visitation, permanency or other matters directly related to the neglect proceeding.

Sometimes even if our intentions are good, the means of doing things beats the purpose. If you feel that your right as a parent was by-passed, seek the help of the Bronx County Family Lawyer or Bronx County Order of Protection Attorney. If you want to gain custody of your child, approach the Bronx County Child Custody Attorney from Stephen Bilkis and Associates.

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