New York Criminal Lawyer Blog
Respondent is the mother of the two subject children. Respondent also has an older daughter, currently a third year student at Princeton University, visits the home on some weekends and during school vacations.
In February 2008, respondent was arrested and her children were removed from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. Thereafter, the Children Services filed petitions against respondent in kings County Family Court.
A Kings County Criminal lawyer said that the petitions allege that the mother neglected her son, by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, the police 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. He 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. 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 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.
The Judge granted the mother unsupervised visitation with both children on the consent of Child Services and the Attorney for the Children. Thereafter, 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 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.
During the Court‘s in camera interview, the son reported that he and his mother continued to attend family therapy on a regular basis. He reported that his mother now speaks to him when he does something wrong. He said that prior to the hearing, they were not communicating. He said although he has continued to do “not that well in school,” he and his mother are able to discuss it. He said that she is able to tell him about her disappointment especially because she thinks he has the ability to do so much better.
During the Court’s interview, he described the events. He reported that his mother learned that he had failed a number of classes and that this occurred after she had received the Time Warner bill. He said that she beat him with a belt. During the incident he did not have a shirt on. He cried and asked his mother to stop. When the son tried to get away, his mother grabbed him, they fell to the floor and she hit him again. He denied that his mother had tied him to the chair and he denied that he ever said that she had.
The daughter reported that her mother had used corporal punishment with her on one occasion when she “was little.” She did not remember how old she was when it happened, saying “like maybe three.” Although she did not remember what happened at that time, she knew that no belts were involved. The daughter reported that since then she has been disciplined with “time outs.” According to the daughter, this involves her having to go into a different room and stay there quietly for a while. After a period of time, she goes to talk to her mother and explains what she thinks she did wrong.
Family Court Act § 1012 (f) (i) (B) defines a “neglected child” as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care; in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court.
In the instant case, the evidence adduced is sufficient to establish neglect by the mother as to The son based on her use of excessive corporal punishment. The allegations of derivative neglect have also been established by the requisite quantity of evidence. By inflicting excessive corporal punishment upon The son, the mother demonstrated a sufficiently flawed understanding of the duties of parenthood to warrant a finding of derivative neglect.
In considering a motion under Family Court Act § 1051(c) courts have also focused on whether the parent has successfully completed all necessary services. In a case, the court granted a § 1051(c) motion where the parent had completed services and the child was at home. In that case, the child was initially removed due to the mother’s arrest. Nevertheless, by the time of the fact-finding hearing, the child had been returned home with preventive services in place and the mother had completed all services. Accordingly, the court found no basis to conclude that the child’s interests required protection or that continued supervision by a child protective agency was appropriate.
Similar reasoning was applied by the court in another case. In that case, the court granted a Family Court Act § 1051(c) motion although the children had originally been removed as a result of injuries sustained by one of them from shaken baby syndrome caused by the father’s paramour. In determining that the aid of the court was no longer required, the Family Court noted that the father had separated from his paramour, complied with all prior court orders and completed all recommended services. The court found “a normal, healthy and affectionate parent-child relationship” and that there was no danger of present or future neglect. The court concluded that dismissal was in the children’s best interests since it would enable the father to pursue additional professional development opportunities and remain a more active presence in his young sons’ lives by allowing him to leave his job as a long-distance truck driver and obtain employment closer to home. The court noted that the children were thriving in their father’s care and that the Attorney for the Children supported dismissal as being in the boys’ best interests.
In another case, a neglect petition was filed alleging that the mother’s excessive use of alcohol placed the child at imminent risk of impairment. By the time of the fact-finding hearing, the agency that provided treatment and other services to the mother, reported that she had adequately addressed her substance abuse problem and was ready to take on child-care responsibilities. In addition, because services to the family were available without a dispositional order, the Family Court granted the application to dismiss finding that its aid was no longer required.
Where respondent or the family continue to require supervision by a child protective agency, a Family Court Act § 1051 (c) motion must be denied because there can be no further supervision once the petition is dismissed. Accordingly the court must determine whether ongoing supervision is necessary to protect the children’s interests.
In a case, the Court held that the Family Court erred by dismissing a neglect petition pursuant to Family Court Act § 1051 (c) since ongoing supervision was required. In that case the Court rejected the family court’s conclusion that an award of sole legal custody to the non-respondent father was sufficient to protect the child’s interests. The Court found that ongoing supervision by the agency was necessary to monitor the mother’s conduct and supervise visits until the trial court was satisfied that the child was being adequately protected.
In deciding whether “the aid of the court is required,” the courts have also considered whether services are available to the family without a dispositional order and whether a dispositional order is necessary to ensure compliance. Applying similar reasoning in a decided cases, the court granted dismissal. In that case, the court concluded that respondent would continue to voluntarily participate in the services and programs aimed at assisting her without a dispositional order. The court noted that while respondent had more to learn about the needs of her developing infant, with supportive services in place and her openness to instruction, she was like any other new parent who had to learn about the stages of their developing child.
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.
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 Children 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.
Family cases including neglect of children should not be tolerated. These children, by reason of their age should be taken care of. Here in Stephen Bilkis and Associates, we assist these youngsters by filing a case against their negligent parents through our Kings County Family lawyers. Likewise, our Kings County Criminal attorneys will help those victims of abuses of any kind, to prosecute their assailants. Contact us now, we are very willing to hear your dilemmas.