Matter of Michael A.
2018 NY Slip Op 05154
July 11, 2018
Matter of Michael A.
2018 NY Slip Op 05154
July 11, 2018
In October of 2017, the Administration of Child Services (ACS) filed an Article 10 proceeding on behalf of the child Donnisha, against the paternal grandmother and uncle.
A petition for neglect states that Ms. PW (grandmother), and Mr. S (uncle), are responsible for the child’s care under Family Court Act (FCA 1012). The petition alleges that the defendants are failing to properly care for the child (neglect), and are inflicting corporal punishment.
NY Slip 00975
February 8, 2017
This is an appeal by a mother from a Family Court matter in Westchester County. The Order found that the mother was guilty of neglect. It was ordered that the decision of the prior court was affirmed.
In Re: T.G. a Minor Allegedly Neglected by P.G. – No. NN-20507/15
This matter came to the court on inquest after the respondent failed to appear on three different occasions. The petition alleges that the respondent neglected her child and failed to provide proper guardianship and supervision.
In a child neglect case, the petitioner is required to prove by a preponderance of material and relevant evidence that the subject child’s emotional, physical and mental well-being was impaired (FCA 1046 (b)(1). It must also be proven that the harm to the child was directly caused by the respondent’s failure to provide a minimum degree of care (Nicholson v. Scopetta, 3 NY 3d 357, 368 (2004).
In a child neglect proceeding brought pursuant to Family Court Act article 10, the parties stipulated to have the Nassau County Department of Probation investigate the underlying circumstances relating to the alleged child neglect and to thereafter issue a report, including its recommendations. The parties further agreed to allow the court to use the Probation Department’s report “to aid it in rendering a decision” in the matter.
The Probation Department, which was not a party to the stipulation, produced a report which did not, however, contain any recommendations. By order dated April 30, 1984, then Family Court Judge PC, before whom the proceeding was pending, directed the Probation Department to make a definite recommendation. When the Probation Department informed Judge PC that it did not consider it appropriate for it to make recommendations prior to the court’s making of a finding of neglect, Judge PC reiterated her order. The Probation Department thereupon commenced the instant proceeding in the Supreme Court to annul Judge PC’ order, to prohibit its enforcement, and to obtain a declaration that Family Court Act §§ 1047 and 1048 preclude it from furnishing reports to the Family Court prior to completion of a fact-finding hearing. Judge PC cross-moved to dismiss the petition, inter alia, on the ground that a CPLR article 78 proceeding in the nature of prohibition is not available to obtain the relief sought.
Initially, appellant (Judge PC) raises the question as to whether a CPLR article 78 proceeding is the appropriate vehicle to challenge the Family Court’s direction since prohibition is an “extraordinary remedy” that is available against a court only when it acts without jurisdiction or exceeds its authorized powers. Purported errors of law, which are not properly reviewable by a CPLR article 78 proceeding in the nature of prohibition, are often incorrectly asserted to have been made in excess of jurisdiction
The Presentment Agency moves, pursuant to a motion for summary judgment, for an order adjudging an after-born child to be permanently neglected, upon the ground that the parents of the two older siblings of the after-born child have previously been adjudicated unable to provide proper and adequate care for them.
The facts of the case is as follows: On March 27, 1998, the two older children of the parties, SH and MH, ages four years and two years respectively, were removed by Nassau County DSS and an application for return pursuant to FCA §1028 was filed by the parents. The Court tried that matter from April 24, 1998 through May 8, 1998, resulting in a denial of the application to return.
Thereafter, the fact finding hearing concerning the two older children was commenced on August 31, 1998 and did not conclude until May 7, 2001. The reason for the lengthy hearing was that counsel for one of the parties had an extended illness, that the Mother had been committed to Pilgrim State Hospital for a long period of time and that the Father had been a voluntary resident at various times at the Northport VA Hospital, psychiatric unit.
In an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff’s motion, “resettled and clarified” the judgment of divorce, by (1) amending and reducing defendant H’s visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.
By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple’s son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:
“ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff’s attorney shall receive a doctor’s prescription of the defendant’s need and a further copy furnished to this Court”.
The appellant (hereinafter the mother), is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours of February 4, 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the New York City Administration for Children’s Services (hereinafter ACS) filed petitions in the Family Court, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their non-respondent father and his mother (the children’s paternal grandmother), with whom the father lived.
On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1½ years, during which time the children remained in their father’s care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.
The question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Although the Family Court returned the children to the mother while the determination of this appeal was pending, we find that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother’s application for a Family Court Act § 1028 hearing.
The question presented by the instant case is whether the evidence adduced on NYCCS’s direct case at the combined Family Court Act § 1027 hearing, for the child DD, and Family Court Act § 1028 hearing, for the children JJ and BB, establishes imminent risk sufficient to warrant the children remaining in non-kinship foster care during the pendency of these proceedings. In the Court’s view, that question must be answered in the negative since any possible risk to the children from the father can be mitigated by the issuance of a temporary order of protection and an order that the mother re-enter a domestic violence shelter and resume domestic violence counseling, as well as her participation in other recommended services.
This proceeding was initially commenced on June 3, 2010, when NYCCS filed petitions against respondent mother and respondent father pursuant to Article 10 of the Family Court Act. The petitions alleged that the mother and father failed to provide a minimum degree of care to their three children since the father committed acts of domestic violence against the mother in the presence of the children and both parents failed to ensure that the school-aged children attended school regularly.
Upon the filing of the petition, the court granted NYCCS’s request for a removal of the children and directed that they be restrictively placed with the maternal grandmother. In addition, the court entered a temporary order of protection against the father. That order directed the father to refrain from committing any family offenses against the children or the maternal grandmother and stay away from them except for visitation supervised by the grandmother or the agency.
This extension of placement proceeding under Section 1055 of the Family Court Act raises questions as to the perimeters of the Family Court’s jurisdiction.
MR was born on June 19, 1982. Less than two months later, she was remanded to the Commissioner of Social Services who has had responsibility for her since that time. On November 22, 1982, after a finding of neglect, MR was placed with the Commissioner for 18 months. On December 8, 1982, the Commissioner placed the child with St. Christopher’s Home for Children, an authorized agency, which in turn placed her with F Parents, where she continues to reside.