New York Family Law Blog
Respondent is the mother of the two subject children, a boy and a girl. Respondent also has an older daughter, currently a third year student, visits the home on some weekends and during school vacations.
A New York Custody Lawyer said that in February 2008, respondent was arrested and the children services removed the son and the daughter from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. On February 15 2008, the children services filed petitions against respondent in Kings County Family Court. The petitions allege that the mother neglected the child, by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, on that day, NYPD responded to a 911 call made from a business near the case address after the son left the home because his mother beat him with a belt. The petitions further allege that the son reported that the beating took place after his mother learned that he had failed a number of classes. When the son tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again. The son also reported that his mother had used physical discipline in the past although this time was worse than other times. Finally, the petitions allege that the daughter is a derivatively neglected child by virtue of the neglect of the son.
On the day the petitions were filed, the judge granted the request of the children services for a removal of the children and temporarily released them to their maternal aunt. The judge entered a temporary order of protection against respondent on behalf of the children directing that she refrain from the use of corporal punishment. A New York Family Lawyer said the Judge also ordered that the mother have liberal supervised visitation at the aunt’s home.
Two days after the incident, the mother enrolled in a number of programs offered by Family Dynamics. She immediately started a 16 week parenting support program and thereafter attended every Saturday from 11:00 AM to 1:00 PM. She never missed a session. She also started a 12 week anger management program which she attended every Saturday from 2 PM to 5 PM. She never missed a session. She started individual counseling and later found her son a therapist as well. She visited the children every day. She did their laundry, made them lunch and had two meals each day with them whenever possible. She checked their homework and was present for all of their doctors’ appointments.
Later on, a Nassau County Family Lawyer said the Judge granted the mother unsupervised visitation with both children on the consent of children services and the Attorney for the Children. Thus, with the consent of all parties, the court changed the children’s status from a temporary release to the maternal aunt to a restrictive remand with the children to reside with a family friend of six years. The maternal aunt had indicated that she was having difficulty transporting the children back and forth from her home in Manhattan to Brooklyn where they attended school and extra-curricular activities. The family friend was a den mother for the son’s Boy Scout troop and lived close to the children’s school in Brooklyn. She had a separate bedroom in her home for each of the children and agreed to transport them to and from school and their other activities.
The courts have considered the nature of the original allegations to the extent that they indicate a likelihood of future neglect. Accordingly, Family Court Act §1051(c) has been applied in a number of cases involving allegations of medical and educational neglect where the underlying problems that led to the original filing were resolved by the time of the fact-finding hearing.
Nevertheless, relief under Family Court Act § 1051(c) is not limited to cases involving medical or educational neglect. In fact, “[n]o matter how serious the neglect, if the court concludes its aid is not required on the record before it, the court shall dismiss the petition”. This point is illustrated in a case wherein it was said that a neglect proceeding was brought against a mother who left her newborn infant in a waste receptacle. By the time of the hearing, the child had been home for an extended period and Visiting Nurse Services and caseworkers reported that no further services were necessary and that the mother and the child were doing well. During the hearing the court heard testimony from monitoring agencies that there was no danger of present or future neglect. They further reported that “a normal, healthy and affectionate parent-child relationship” had developed. Reports from an independent social worker, the police detective assigned to the case and the family’s babysitter, all confirmed that there was no danger of neglect. For this reason, the court concluded that its aid was not required and it granted the application to dismiss the petition.
A New York Child Custody Lawyer said that without explicitly citing Family Court Act § 1051(c), the appellate courts have applied similar reasoning in dismissing certain neglect proceedings involving allegations of excessive corporal punishment by parents against adolescents. In these cases, the courts have considered whether the parent acknowledged that his or her actions were inappropriate. The courts have also considered whether the use of excessive corporal punishment was an isolated instance or the parent regularly used excessive force.
The courts have also considered whether the parent’s use of physical force resulted in impairment or imminent risk of impairment to the child’s physical mental or emotional condition. Consideration of these factors in light of the facts at bar leads this Court to conclude that dismissal of the petitions is warranted pursuant to Family Court Act § 1051 (c). In reaching this conclusion, this Court is cognizant of the fact that this is a case involving serious and disturbing acts of excessive corporal punishment. Many of the allegations in the petition have been established by a fair preponderance of the credible evidence, which included the mother’s testimony. The allegations of derivative neglect have also been established by the requisite quantity of evidence.
Nevertheless, “[n]o matter how serious the neglect, if the court concludes its aid is not required on the record before it, the court shall dismiss the petition”. Having concluded that there is no basis for continued supervision or for requiring the mother to participate in referrals made by child services, dismissal is mandated by the statute.
Three years ago the mother beat her son with a belt. Although it was not the first time — it was the worst and it was the last. She realized that she needed help and she found it. She did not wait for the child services to tell her what she needed to do or to make referrals. Instead, two days after the incident, the mother found appropriate service providers and immediately started therapy. She thereafter attended services religiously. She completed parenting skills and anger management two-and-one-half years ago. Although individual and family therapy were not included in the service plan, the mother knew that she and the son needed additional help. She again found appropriate treatment providers and two-and-one-half years ago she and the son started attending therapy. They have remained in therapy since that time — not because the child services recommended it or because the court ordered it but — because she believed it was helpful.
From the outset, the mother took responsibility for her actions, and for the care of her children. When her children were with kinship resources, she visited them almost every day. She did their laundry, reviewed their homework, made them lunch and shared breakfast and dinner with them whenever possible. When caring for the children became difficult for the maternal aunt because of the need to transport them back and forth from Manhattan to Brooklyn, the mother reached out for help. She soon found it in a family friend and den mother for the son’s Boy Scout troop, who was able to ensure that the children remained in their schools and attended their extra-curricular activities.
Two months after the incident, with the support of the child services and the Attorney for the Children, the court granted the mother unsupervised visitation. Three months after that, with the support of the child services and the Attorney for the Children, the court temporarily released the children to the mother under supervision.
There has never been another incident. The mother has never violated the temporary orders of protection that were in place. Since then, she has not used corporal punishment although the order of protection was vacated nine months ago. She has also complied with every other order issued by this Court. The Attorney for the Children has repeatedly emphasized that her clients are thriving in their mother’s care. She asserts that the aid of the court is no longer required and she strongly supports dismissal in the children’s best interest.
The Child services indicate that the children are thriving. They report that the mother is “providing a loving and stable home environment for her children.” Likewise, it says that the daughter is a “delightful, happy and friendly child.” She is doing very well in school. Her teachers describe her as an “enthusiastic, helpful girl with a big smile and strong sense of self.” She “works hard in all subject areas each day and she works well in partnerships and small groups.” She is “a frequent participant in class discussions.”
The children have developed normal, healthy and affectionate parent-child relationships with the mother and there is no danger of present or future neglect. The mother has fully engaged in services and successfully addressed the problems that led to the filing of the petition. In other words, she has rehabilitated herself during the pendency of this proceeding. Since the statutory scheme is intended to be remedial, not punitive in nature, its purpose would be subverted if it were used here to punish the mother — and ultimately the children as well—in the name of child protection.
The child services disagrees and requests findings of neglect and derivative neglect, as well as a dispositional order releasing the children to the mother with six additional months of supervision. In addition, the child services seek an order prohibiting the mother from using corporal punishment, directing that she ensure that the son remains in therapy with the physician and that she cooperate with unannounced visits.
The record establishes that a dispositional order is unnecessary to achieve these objectives or protect the children’s interests. A temporary order of protection prohibited the mother from using corporal punishment. Since then, there has been no order of protection in effect. There have been no acts of corporal punishment throughout this entire period with or without an order of protection. Accordingly, reinstating the order of protection at this point is unwarranted.
Although the problems in this family have not been eliminated, the mother’s ability to address those problems has changed. During the last three years these changes have been repeatedly demonstrated by the mother’s responses to stressful situations involving her son, including his use of internet pornography, stealing money from a family friend and lying to his mother about these events. The mother never resorted to corporal punishment. She had learned not to respond in moments of anger, stress or disappointment. Instead, she gave herself and the son time to cool off until those feelings subsided. She was then able to talk to him about his behavior and her feelings without blowing up. She learned to rely on the strong support system she built involving members of her family and her church, and she and the son continued to discuss these difficult issues in therapy.
The children have now been home for an extended period of time and ongoing supervision by child services is no longer necessary to monitor the mother’s conduct, supervise the home or otherwise ensure the Court that the children are being adequately protected. The Court does not question the mother’s commitment to therapy and to doing whatever else may be necessary to ensure that the children’s needs are met. The Court is fully satisfied that the children’s interests are being protected by the mother and that dismissal is in their best interests.
Abandoning a child of tender age should not be tolerated since during this stage, the child’s body and mind is developing. Here in Stephen Bilkis and Associates, our Kings County Family lawyers will help these children to receive what are due to them. Through our Kings County Child Custody attorneys, custody to proper persons will be granted upon their petition in Courts.