New York Criminal Lawyer Blog
A Kings Family Lawyer said that, 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.
A Kings Domestic Violence Lawyer said that, 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. Shortly thereafter, the grandmother and the children traveled to Pennsylvania to visit with relatives. When she and the child subsequently returned to New York City, the other children remained in Pennsylvania with family members. Although NYCCS was apparently aware of this arrangement, the record fails to establish whether or not they actually agreed to it.
A Kings Criminal Lawyer said that, on August 13, 2010, the mother requested a FCA § 1028 hearing for the child. She did not request the immediate return of the other children because they were staying with relatives where they were safe, happy and attending school. The hearing, concluded on August 20, 2010, when the court granted the mother’s application and directed that the subject be returned to her. The Judge issued a temporary order of protection against the father on behalf of the mother and the subject child. 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. The Judge 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 the subject child 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 the subject child 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 the subject child 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 the subject child 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 David 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 David without a court. He was then placed in non-kinship foster care.
A Kings Order of Protection Lawyer said that, NYCCS moved by order to show cause for the remand of the subject child. By that point, caseworkers had already removed the other children 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 the subject child and a FCA § 1028 hearing for the other children. That hearing was conducted by this Court that day.
The issue in this case is whether the evidence adduced on NYCCS’s direct case at the combined Family Court Act § 1027 hearing, for the subject child, and Family Court Act § 1028 hearing, for the children, 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.
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 addition, the court must consider whether the risk can be mitigated by reasonable efforts to avoid removal, such as issuing a temporary order of protection or providing services to the family.
The plain language of the statute and the legislative history supporting it establish that “a blanket presumption favoring removal was never intended. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the children’s best interests”.
The Legislature’s goal in enacting these provisions was to place “increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble by removing the children from the family”. As the Court of Appeals has emphasized, the public policy in this State is to keep families together whenever possible, while continuing to protect the health and safety of the children. Another goal of these requirements was to ensure that “where one parent is abusive but the child may safely reside at home with the other parent, the abuser should be removed. This will spare children the trauma of removal and placement in foster care”. This goal is based on the well-recognized fact that when children are removed from their caretaker and home they experience emotional and psychological harm. Therefore, it is critically important that the harm children experience from removal not be unnecessarily prolonged and that they are returned to their parents as soon as possible if there is no imminent risk.
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 the above mentioned case.
The emergency removal of the child 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.
The fact that the mother may have briefly failed to comply with certain aspects of Judge Weinstein’s order did not justify an emergency removal. The courts in this State have repeatedly held that a violation of a court order in an article 10 case is insufficient to establish imminent risk or neglect absent a showing that the violation caused impairment or imminent risk of impairment and that the risk outweighed the harm posed by removal.
In the instant case, NYCCS asserts that the mother violated the Judge’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 the Judge’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.
Accordingly, with the following conditions, the children should be immediately released to the mother under NYCCS supervision.
The court held that, three subject children are temporarily released to the custody of the respondent mother pursuant to FCA § 1027 and FCA § 1028, pending a final order of disposition or further order of the court, under the supervision of NYCCS and upon the following terms and conditions: respondent mother shall enforce the terms of a full stay away temporary order of protection against respondent father; comply with NYCCS referrals for a confidential domestic violence family shelter; comply with ongoing domestic violence counseling; cooperate with NYCCS supervision, including announced and unannounced home visits; and it is further ordered that NYCCS and or the agency are directed to assist the mother and the children in obtaining an immediate shelter placement, and then a placement in a domestic violence shelter as soon as possible; and it is further ordered, that the previously issued temporary order of protection is modified on behalf of the mother and the three subject children to direct that the father refrain from committing any family offenses against the mother or the children and stay away from them and that he not communicate with them by any means, including third party contact, except for supervised visitation at NYCCS or the agency.
If you know of a child being subjected to domestic violence by their parents, seek the assistance of a Kings Domestic Violence Attorney and Kings Order of Protection Attorney in order to prevent further harm to the child.