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Court considered the validity of the restrictions imposed on the father’s parental access to his children. In re Fatuma I., 2022 N.Y. Slip Op. 7234 (N.Y. App. Div. 2022)


In In re Fatuma I., 2022 N.Y. Slip Op. 7234 (N.Y. App. Div. 2022), the father appeals from an order dated January 13, 2022, which imposed restrictions on his parental access to his children. The court directed that the father could only have supervised access and prohibited him from being alone with the children or staying overnight in their home.

Background Facts
The subject children were removed from their parents’ care in 2015 due to allegations of sexual abuse and derivative abuse. Derivative abuse refers to a situation where a child has been subjected to abuse or neglect as a result of being in the care of someone who has abused or neglected them indirectly. For example, if a child is exposed to domestic violence between their parents or caregivers, even if they are not the direct target of the abuse, they may still suffer emotional or psychological harm, which is considered derivative abuse. Similarly, if a child witnesses substance abuse or other harmful behaviors by a caregiver, it can have detrimental effects on their well-being, constituting derivative abuse. Essentially, it involves harm suffered by a child due to the actions or behaviors of those responsible for their care, even if the abuse or neglect is not directly inflicted upon the child themselves.

In Fatuma, the children were placed in kinship guardianship with their maternal grandfather. After several permanency hearings, the Family Court issued an order on January 13, 2022, granting a final discharge of the children to the care of the mother. This order also imposed restrictions on the father’s access to the children, including supervised visitation and limitations on his presence in the children’s home.

The primary issue in this case is the validity of the restrictions imposed on the father’s parental access to his children. The father appeals the order, arguing that he was not given an opportunity to be heard before the restrictions were imposed.

The appellate court reversed the order in part, finding that the Family Court did not conduct a proper hearing before imposing restrictions on the father’s access to the children. The court determined that the father should have the opportunity to present his case and challenge the restrictions through a new permanency hearing.

The court’s decision to reverse the January 2022 order and remit the matter for further proceedings was primarily based on procedural grounds. The court found that the father had not been given an opportunity to be heard regarding the provisions of the order that restricted his access to the children. Despite previous directives by the court to hold a final discharge conference and schedule a meaningful permanency hearing, the January 2022 order was issued without the father’s involvement or a proper court proceeding.

The court emphasized that due process requires that all parties involved have the opportunity to present their arguments and evidence before a decision is made that significantly affects their rights, especially in cases involving parental access to children. In this instance, the absence of a hearing deprived the father of his right to be heard and participate in the decision-making process regarding his access to the children.

Furthermore, the court noted that the provisions of the January 2022 order would remain in effect until a new permanency hearing could be conducted and a new determination made. This was to ensure continuity in the children’s living arrangements while the legal proceedings continued.

The appellate court’s decision emphasizes the need for procedural fairness in family court proceedings involving parental rights. The case underscores the importance of conducting thorough hearings and giving parents the opportunity to present their case before imposing restrictions on their access to their children.

Note that this decision does not mean that the father will be given access to the children– supervised or unsupervised. It means that certain procedures must be followed before a determination can be made as to whether the father has access and, if so, what type of access.

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