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Court Determines Custody of Foster Children


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.

On August 13, 2010, the mother requested a FCA § 1028 hearing for the child, DD. She did not request the immediate return of JJ and BB because they were staying with relatives where they were safe, happy and attending school. The hearing, conducted by Hon. W, concluded on August 20, 2010, when the court granted the mother’s application and directed that DD be returned to her. Judge W issued a temporary order of protection against the father on behalf of the mother and DD. That order directed the father to refrain from committing any family offenses against the child or the mother and to stay away from them, except for visitation supervised by the agency. Judge W ordered that the mother enforce the terms of the temporary order of protection, comply with NYCCS referrals for a confidential domestic violence family shelter, comply with ongoing domestic violence counseling and cooperate with NYCCS supervision, including announced and unannounced visits.

Shortly thereafter, the mother and DD entered a domestic violence shelter through PATH. They remained at the shelter until September 8, 2010, when the mother learned that the father had followed her there from the home of the maternal grandmother and that he knew where she was staying. Consequently, the mother and DD were forced to leave the shelter.

On or around September 12, 2010, they returned to PATH to await placement in a different domestic violence shelter. Shortly thereafter, they left PATH and went to stay with a maternal aunt. Several days later, the mother was discharged from PATH for failing to sign-in for a period of 48 hours. During the week that followed, the mother did not contact NYCCS or attend therapy.

Although the mother and DD had been repeatedly displaced and forced to relocate as a result of the father’s actions and although he had allegedly violated the temporary order of protection, NYCCS took no action against him. Instead, on September 14, 2010, the agency requested, and the court granted, a warrant for the mother to produce DD in court.

On September 20, 2010, after learning of the warrant, the mother voluntarily appeared in court and the warrant was vacated. Later that day, after the court appearance, NYCCS conducted a child safety conference. At the conclusion of the conference, the agency removed DD from his mother’s care for the second time. Although the parties had been in court all day, and were again in court all of the following day, NYCCS removed DD without a court. He was then placed in non-kinship foster care.

On September 21, 2010, NYCCS moved by order to show cause for the remand of DD. By that point, caseworkers had already removed JJ and BB from the family home in Pennsylvania and placed them in non-kinship foster care in New York City. Accordingly, the mother requested a combined FCA § 1027 hearing for DD and a FCA § 1028 hearing for JJ and BB.

Legal Analysis

Whether analyzing a removal application under Family Court Act § 1027 or an application for the return of the children under Family Court Act § 1028, the court must determine whether removal is necessary to avoid imminent risk to the children’s lives or health. In considering this question, the court must determine whether there is a risk of “serious harm or potential harm to the children.” There must be evidence that the harm or danger is “imminent,” that is, “near or impending, not merely possible”.

In the case at bar, having viewed the evidence in the light most favorable to NYCCS, the Court finds that continued removal is unnecessary to avoid imminent risk to the children’s lives or health. In addition, the Court finds that any risk presented by the father’s actions, can be mitigated by continuing the temporary order of protection and by providing services to the family to ensure their safety. Further, the Court finds that NYCCS has violated a number of the basic principles outlined in Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840.

Speculation that a Parent may Violate a Court Order does not Establish Imminent Risk

The emergency removal of the child DD was based on assumptions, guesswork and unsupported predictions of future behavior. These cannot substitute for proof and are insufficient to establish a risk of “serious harm or potential harm to the child.” The mere possibility that, at some future point, the mother could resume her relationship with the father, that the father could commit acts of domestic violence against her, that these acts could take place in the presence of the child and that the child could suffer emotional harm as a result, is not proof of danger that is “imminent,” “near or impending.” As the Court of Appeals and the Second Circuit have held a “mere possibility” of harm is insufficient. If it were, courts would be required to uphold virtually every removal since there is always a possibility that at some future point a party may violate a court order.

Assertions that a Parent has Failed to Comply with Certain Aspects of a Prior Court Order does not Establish Imminent Risk Absent Evidence of Impairment

In the instant case, NYCCS asserts that the mother violated Judge W’s order by leaving PATH while awaiting placement at a different domestic violence shelter and temporarily failing to keep the agency apprised of her whereabouts. Assuming, without deciding, that these actions did, in fact, constitute a violation of Judge W ‘s order, they did not cause harm to the children or place them at imminent risk of harm. In fact, the evidence establishes that the mother complied with the order of protection, that she did everything possible to protect the children from exposure to further violence and that the children were being well-cared for by the mother or other family members.

An Allegedly Abusive Parent’s Violation of an Order of Protection does not Establish Imminent Risk by a Non-Abusive Parent

The father’s alleged violation of the order of protection issued by Judge W at the conclusion of the first FCA § 1028 hearing does not constitute a change in the mother’s circumstances or establish that the children would be at imminent risk in her care.

The Possibility of Future Emotional Harm was Insufficient to Justify an Emergency Removal in this Case

In the instant case, NYCCS failed to satisfy the statutory requirements for removing the child, DD, without parental consent or a court order. Family Court Act § 1024 permits an emergency removal only where there is reasonable cause to believe that a child is in such urgent circumstances that continuing in the care of the parent presents an imminent danger and there is not enough time to apply for an order. The danger must be so immediate, so urgent, that the child ‘s life or safety will be at risk before an ex parte order can be obtained. There must be “persuasive evidence of serious ongoing abuse” and “reason to fear imminent recurrence.” This stringent standard, rarely met in cases involving emotional injury, is met even less frequently in cases involving the risk of emotional injury from witnessing domestic violence.

In this case, NYCCS did not even allege-let alone introduce-persuasive evidence of serious ongoing abuse and a reason to fear imminent recurrence. Nor, did the petitioner introduce evidence that the child was in danger that was so immediate and so urgent that his life or safety would have been at imminent risk before an order could be obtained. In fact, the evidence is clearly to the contrary.

On September 20, 2010, when NYCCS effectuated the emergency removal, DD was in his mother’s care staying at the home of his maternal aunt. The evidence establishes that he was well-cared for. There is no indication that his father knew where he and his mother were staying or that he was otherwise in any immediate danger. There was more than sufficient time, entirely consistent with the child’s safety, to seek a court order. In fact, NYCCS could have requested a court order at any time on September 20, 2010 or September 21, 2010, when the parties and their attorneys spent almost two entire days in court.

Since the risk to the child was not imminent and there was more than ample time and opportunity to seek a court order, there was no justification for the use of emergency, extra-judicial procedures. The decision to nevertheless conduct such a removal, in the aftermath of Nicholson, from a non-abusive parent, herself a victim of domestic violence, repeatedly rendered homeless by the actions of the alleged perpetrator, raises disturbing questions. This is particularly true here since a FCA § 1028 hearing had already been conducted and a judicial determination already made that any risk to the child could be mitigated or ameliorated by reasonable efforts and a temporary order of protection. Nothing happened during the weeks following that determination to support this Court reaching a different result-let alone NYCCS doing so without court authorization. By proceeding in this manner under these circumstances, NYCCS failed to comply with the standards set forth by the Court of Appeals and the Second Circuit.

Accordingly, with the following conditions, the children should be immediately released to the mother under NYCCS supervision.

Here at Stephen Bilkis & Associates, we help erring parents regain parental right and custody of their children. All you need to do is call our toll free number and let us discuss your legal remedies.


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