Matter of Autumn A. (Cherrie A.), 2024 NY Slip Op 51769(U), December 23, 2024, Family Court, Kings County, Deane, J:
“Introduction
On November
18, 2024, the Respondent mother, Cherrie A. (“Respondent”), filed a
motion to dismiss the neglect petitions against her, pursuant to Family
Court Act § 1051(c) on the grounds that the aid of the court was no
longer required given the fact that she has safely cared for her 8
children since the filing of this neglect case 7 months ago and in light
of the extreme negative impact that this case and ACS/Court involvement
has had on the family. The motion is strongly supported not only by the
Attorney for the Children (“AFC”) for the 7 children who are not the
alleged target child but also by the AFC for that child, Autumn.
Petitioner Administration for Children’s Services (“ACS”) filed papers
in opposition to the motion.
As mentioned, this is a family of EIGHT children. The oldest child is
Tyrell, age 14 at the time of filing; next is Jamie, then age 12,
Damien, age 10, Autumn, age 8, Noah, age 7, [*2]Riley, age 4, and the
twins Mason and Logan, age 1 and a half.
Procedural History
On May 13, 2024, the Petitioner ACS filed these neglect petitions
against the Respondent mother, Ms. A., alleging that the Respondent
neglected the subject children due to her use of excessive corporal
punishment, primarily due to an incident where she threw a roll of tape
and sneaker at the child Autumn on April 29, 2024; Autumn was hit by the
tape and the sharp edge cut her lip. This cut was observed at school
and the school officials called in a report to the State Central
Registry that day. The petition also alleges that the Respondent mother
has hit Autumn and the other children in the past, including with a
stick, although no other marks or bruises are alleged to have been seen
on any of the children besides the scratch on Autumn’s lip. There is
also an allegation that the Respondent mother failed to sign a form for
the school to engage Autumn in counseling. See Neglect Petition.
At filing, ACS consented to the 8 subject children, including the
target child Autumn, remaining in the family home with their mother.
After the two AFCs spoke to their respective clients, they also
supported this order stating that ALL of their clients wanted to remain
together and home with their mother. None of the other 7 children raised
any safety concerns about their mother’s care of them. The 8 subject
children have remained in the home with their mother without any
incident or safety concern being raised for the 7 months since.
Initially, ACS was willing and sought to work with Ms. A. without
filing a petition or coming to court at all. A Child Safety Conference
was held on May 3, 2024, and ACS recommended a service plan of
preventive services in the home and therapy for the Respondent mother as
well as for the child Autumn. See Affirmation in Opposition
submitted by Petitioner, at p. 2, para 6. ACS points to the mother’s
refusal to agree to preventive services when they came to her home 5
days later as the reason the petition was filed. Id. at para 7.
Ms. A. states she was not unwilling to accept the services but was
reluctant to agree to sign away her child support earnings which was a
component of the consent. See Affidavit of Respondent Mother,
dated Nov. 17, 2024, para 14 and “Consent for Service” Form signed May
8, 2024 attached as Exhibit D to Respondent’s Motion. Ms. A. was also
arrested for the incident with Autumn, and, as a result, faced the added
stress and collateral consequences of having criminal charges pending
along with this neglect matter. Those charges were later allowed to be
dismissed by the District Attorney’s office and that case was sealed on
October 25, 2024. See Exhibit I attached to the Respondent’s motion.
Legal Analysis
Respondent’s motion seeks dismissal pursuant to FCA § 1051(c) in that
no further aid of the Court is required. FCA § 1051 relates generally
to various circumstances where courts may sustain or dismiss an Article
10 petition. Section 1051(c) sets forth two legal bases for dismissal of
a petition: (1) “if facts sufficient to sustain the petition are not
established” or (2) “if, in a case of alleged neglect, the court
concludes that its aid is not required on the record before it.” Under
either circumstance, the court “shall dismiss the petition and shall
state on the record the grounds for dismissal.” FCA § 1051(c). The plain
language of the statute implies that the “aid of the court” prong may
be granted in any neglect case prior to a fact-finding order as long as
there is sufficient basis for the court’s conclusion “on the record
before it.” That record could include the court file, prior court
appearances on the case, and the affidavits and exhibits attached to a
[*3]motion. The statutory language further supports this interpretation
by referring to cases of “alleged neglect”, indicating that such a
motion is not available once an adjudication has occurred. The plain
language also establishes that the existence of neglect is not a bar to
dismissal under this second prong. Given this statutory language, the
legislature clearly intended §1051(c) to preserve the rehabilitative
purpose of Article 10 by acknowledging that, even where a parent may
have fallen short in the care of their children in a way which
constitutes neglect under the law, the parent may have sufficiently
learned from this error in judgment prior to the fact-finding hearing to
the extent that further involvement of the court and the child welfare
system is unnecessary.
It is significant to note that the heading of FCA § 1051 is
“sustaining or dismissing a petition” rather than “orders after
fact-finding hearing.” Similarly, 1051(c) refers to the “record before”
the Court, not the record at the fact-finding or any other type of
hearing or the evidence submitted at a hearing. In fact, at no point in
the body of the section do the words “fact-finding” or “hearing” appear.
If the Legislature had intended this relief to be limited to after a
hearing, it would have been logical to include that language.[FN1]
Petitioner does not appear to be taking the position that the Court cannot,
legally, dismiss a petition without a hearing on the second prong of
1051(c) as ACS acknowledges that the language of the statute is that a
sufficient “record” is required. Petitioner then cites cases in its
opposition to the motion where courts have found a fact-finding hearing
was found by those courts to be necessary for the determination as to
whether its aid was needed. See Affirmation in Opposition p. 6,
paragraph 26-27, dated December 3, 2024. The fact that, in other
instances, courts found that a hearing was needed to ascertain whether
the court’s aid was needed does not mean that it is required in every
case, or in this case specifically. This Court and others have held
that, as long as the record, in whatever form, established that “no
further legitimate purpose would be served by continuing ACS’s
[*4]involvement” with the instant Respondent, the case should be
dismissed pursuant to FCA § 1051(c).[FN2]
See In re Kailynn I., 52 Misc 3d 740 (Fam. Ct. Kings County 2016).
Support for the proposition that a fact-finding hearing is not the
only way a record sufficient for dismissal under the 2nd prong of §
1051(c) can be established is found, as well, in Matter of Angel R.,
285 AD2d 407 [1st Dept 2001]. In that case, the Family Court dismissed a
neglect case because of the petitioner’s lack of readiness to proceed
at the fact-finding. While the First Department did not condone the
dismissal on this basis, it did find dismissal to be proper because the
court’s aid was not required given that the two older children were
living in Puerto Rico with their grandmother and the youngest child was
already under the petitioner’s supervision. Thus, the record below was
found sufficient to establish the second prong of § 1051(c) even without
a fact-finding hearing.
The Record Before the Court
The record before the Court in this case includes: Ms. A.’s 10 page
sworn affidavit and the 12 exhibits attached to support the Respondent’s
Motion to Dismiss, the 6 exhibits attached [*5]to the Petitioner’s
Opposition to the motion, and 3 ACS reports submitted over the course of
these proceedings, on September 11, 2024, October 23, 2024 and November
18, 2024. Ms. A.’s exhibits include: the consent she signed for
preventive services dated May 8, 2024, the certificate of dismissal of
her criminal case, school attendance records for the 5 school age
children, the syllabus from her course in maternal and child nursing,
and proof of lost employment. Petitioner’s exhibits include the ORT
dated April 29, 2024, 5 pages of ACS Investigation Progress Notes which
include a summary of the Child Safety Conference (“CSC”) held on May 3,
2024, the Initial CSC Recommendation Summary, the Neglect petition, the
Order of the Court releasing the children to their mother dated May 17,
2024, and 17 pages of Family Service Progress Notes from July 25-30,
2024.
The records establish that a Child Safety Conference (“CSC”) was held
on May 3, 2024, and Ms. A. admitted that she threw a roll of packing
tape at Autumn because Autumn threw it at her first. Ms. A. denied using
force to throw it at her daughter, which was confirmed by the maternal
grandmother who was present during the argument. Ms. A. stated that the
only form of physical punishment she uses is “open handedly hitting the
children on fatty areas of their bodies” and “denied utilizing any
objects as a form of punishment.” Ms. A. reported that since her most
recent case where ACS provided her with services in the home, she had
learned to use her support system to insure the children always have
appropriate adult supervision. Both the mother and grandmother also
expressed that they are concerned with Autumn’s behavior, that she often
lies and misbehaves at school and home and that Ms. A. has requested
that the school evaluate Autumn to enable her to obtain counseling
services. See Exhibit 2, Investigation Progress Notes, attached
to Petitioner’s Affirmation in Opposition, at p. 37. Ms. A. also
acknowledged hitting the two oldest boys with a stick in the past but
that since she was told by ACS that she should not use the stick as a
form of discipline, she has not done so and has only used it as a “scare
tactic.” See Exhibit 3, Initial CSC Recommendation Summary,
attached to Petitioner’s Affirmation in Opposition, at p. 2. ACS
recommended a service plan of preventive services in the home and
therapy for the Respondent mother as well as for the child Autumn. See Affirmation in Opposition submitted by Petitioner, at p. 2, para 6.
Over the next several months there were significant delays in
meaningful services being provided to the family which the Court
references later in this decision. In short, these delays are
attributable to both ACS and to a lesser extent to Ms. A. ACS bears
greater responsibility given that it is a large government agency tasked
with the duty to provide parents and families with assistance when it
determines that such intervention is necessary to insure children are
safe at home whereas Ms. A is a single parent working hard to care for 8
children.
By the time of the November 28th court report, these services had
been put in place. The report states that the child Autumn was enrolled
in both in-school and outpatient therapy and that Ms. A. was engaging
with preventive services which would implement anger management and
parenting skills. The preventive worker had “no pressing concerns.” The
day care provider for the youngest children also had no concerns for the
case of the children and said Ms. A. was a “good mother” and if
anything was “too lenient.” See ACS Court Report, dated
November 28, 2024, p. 3-5, attached as Exhibit H to Respondent’s Motion.
At a home visit on November 13th, the caseworker observed all of the
children to “have a close bond with each other and their mother” and
added, “The older children are not parentified but willingly assist the
mother in caring for the younger children by consoling them and
providing them with toys or food at their request.” Id. at p. 2.
The record also includes this Court’s experience presiding over 8
court conferences from May through November at which Ms. A. consistently
appeared and engaged pro-actively.
DECISION
The issue here is whether the Family Court finds that the “record
before it” on this specific case is sufficient to reach the conclusion
that its aid is not required.
The impact of these dual court proceedings was particularly severe on
Ms. A. and her children as she is a licensed practical nurse who was
the sole support for the family. Ms. A. lost her job as a result of
these cases at some point after the filing and she has had to apply for
public assistance. See Affidavit of Respondent Mother, dated
Nov. 17, 2024, para 24-25. This has caused this large family extreme
financial hardship which has caused tremendous stress and harm to the
children. Ms. A. could no longer afford her car which she used to drive
all of the children to school and day care, including her oldest who is
in a competitive high school that now takes him over 2 hours of travel
each way. She has been unable to afford internet which the children need
for school as well as pay bills for the child Autumn’s therapy and the
children’s dental care and eyeglasses. Id. at para. 26-29.
Here, Ms. A. did acknowledge throwing the tape at Autumn and also having used other forms of physical punishment in the past. In contrast, In re Phillips N.,
104 AD3d 690, 692 [2d Dept 2013] (dismissal under § 1051(c) properly
denied where the mother never admitted responsibility for her daughter’s
injuries). The ACS case records contain Ms. A.’s statements that, after
she was told by ACS in the past that she could not use a stick as a
form of discipline, she has not done so. See Affirmation in Opposition submitted by Petitioner, attached as Ex. 3, Child Safety Conference Notes at p. 2.
Additionally, the Court does not believe that any additional services
or ACS intervention is needed to insure the children’s care reaches the
minimum legal standard. In the Second Department’s decision in In re Kayden H.,
104 AD3d 764, 764 [2d Dept 2013], the Appellate Division found that,
“although facts sufficient to sustain the petition were established,”
the Family Court should have dismissed the petition pursuant to FCA §
1051(c) because the mother and grandmother had completed all of the
services ACS had requested of them, the child was returned to the mother
during the course of the proceeding, and the ACS progress notes noted
“no safety concerns.” Id. at 765-66. The Second Department
concluded that what was important in that case was “that the incident on
which the petition was based was an isolated one, that the mother and
grandmother had been rehabilitated, and that the child was no longer at
risk of being neglected.” Id. at 766.
Based on the Court’s knowledge of this case and the papers filed,
there have been two issues that have kept this case from resolving
sooner with a withdrawal or an Adjournment in Contemplation of Dismissal
(“ACD”), which would be the appropriate outcome given that ACS was
initially looking to avoid court for this family entirely. First, after
filing, ACS wanted Ms. A. to engage in preventive services as well as
parenting and anger management. This was unrealistic given that she was
still parenting all 8 children in her home. Rather, ACS should have
proactively offered from the outset to discuss having the assigned
preventive agency include these services within their home-based
approach, rather than waiting until October to “encourage the respondent
mother to speak with the preventive agency about incorporating these
services.” See Affirmation in Opposition submitted by
Petitioner, at p. 5, para 19. This is particularly true given that Ms.
A. had previously completed this class and repeating it would not
address the [*6]specific scenario here of managing 8 children of various
ages which requires the kind of individualized parenting strategies a
preventive worker could provide. The second issue was Ms. A. concerns
about signing the necessary paperwork for preventive which included an
assignment of child support. Once Ms. A. was assigned an attorney, this
issue could have been quickly addressed, and potentially resolved,
between counsel. Instead, it took months for these two issues to be
successfully addressed. Additionally, both the mother and grandmother
expressed concerns and challenges with the child Autumn’s behavior
generally which could have provided an opportunity for ACS to offer
empathy and support. Finally, there was no opportunity for any assigned
workers to attempt to forge a more positive working relationship with
Ms. A. given that, over the course of this case, ACS had 10 different
ACS case workers come to the home as well as 5 different preventive
workers, making the formation of a trusting relationship near
impossible. See Affidavit of Respondent Mother at para 17-19.
It is often the case that the parents who come before the Family
Court are mistrustful and/or resistant to ACS caseworkers and services.
This is not at all surprising. This is the same agency that entered the
sanctity of a family home for the purpose of investigating allegations
of inadequate parenting. No parent welcomes this type of intrusion and
examination nor the anxiety for the entire family that that it brings.
While this is the very essence of ACS’s job and, necessary for ACS to
fulfill its important function of ensuring that children’s care in a
home does not fall below the minimum legal standard, the impact on, and
reaction of families is also predictable and understandable. In
addition, for many complex reasons, the families investigated by ACS in
New York City are overwhelmingly from lower income communities of color
who have experienced a high level of surveillance and bureaucratic
over-sight simply due to where they live, attend school, and their
financial situation. The stress these families already feel is an
important back-drop to the reaction of these parents when confronted by
an ACS investigation.[FN3]
ACS’s opposition to this motion is largely based on Ms. A.’s failure
to complete her service plan. However, the reality is that ACS did not
engage meaningfully with Ms. A. to address and/or overcome her concerns
and accomplish this goal by working collaboratively with her. While Ms.
A. may not have engaged in all the services ACS would have wanted her
to, the reality is that the children have been home safely for 7 months
and there is no basis to believe that additional services, particularly
ones Ms. A. has previously completed, would make a difference in the
future. It is inevitable that every parent “loses their cool” at times
and does not respond to stress in an ideal way. No parent is perfect,
and perfection is not the goal of the child welfare system; rather it is
intended only for those situations where the manner of response falls
below a minimum standard.
While there has not been a trial here, based on the ACS case records
cited in the various [*7]motion papers, this Court would likely not find
the “punishment” used here to be “excessive” under the law. A parent’s
reaction of throwing a benign object like tape, that was not inherently
dangerous, out of frustration where it was first thrown at them by the
child, resulting in an accidental minor injury, on one occasion is not
enough for a finding of neglect. The maternal grandmother, who was
present, specifically told ACS at the pre-filing conference that the
tape was not thrown with force. See Affirmation in Opposition
submitted by Petitioner, attached as Ex. 2, ACS Progress Notes at p. 37.
While Ms. A. acknowledged she had used a stick in the past on some of
the other children, she stated that she had stopped after a prior ACS
involvement taught her that was inappropriate. There is also no evidence
of marks on any of the other children and none of them expressed any
current recent physical punishment or other concern about remaining with
their mother.
It is important to note that Article 10 does not prevent all physical punishment — only excessive. See FCA §1012(f)(i)(B). As the Second Department held in Matter of Anastasia L-D.,
“[p]arents have a right to use reasonable physical force against a
child in order to maintain discipline or promote the child’s welfare.
Although a single incident of excessive corporal punishment may suffice
to support a finding of neglect, there are instances where the record
will not support such a finding, even where the parent’s use of physical
force was inappropriate.” 113 AD3d 685, 686 [2d Dept 2014] (father hit
14-year-old with a belt causing bruises because she had cut school and
was refusing to give him her cell phone); In re Christian O.,
51 AD3d 402, 403 [1st Dept 2008] (“This appears to have been an isolated
incident, and ‘[w]hile losing one’s temper does not excuse striking and
injuring one’s child, one such event does not necessarily establish …
neglect'”] (quoting Matter of P. Children, 272 AD2d 211, 212 [2000], lv. denied 95 NY2d 770 [2000] ); Matter of Hattie G.,
48 AD3d 1292 [4th Dept. 2008] (no neglect where mother, after
discovering that fourteen-year-old daughter stayed out overnight without
permission, confronted her with plastic toy wiffle bat, struck her
several times in legs and buttocks, and then accidentally struck her
once in head and caused a small welt or bruise under right eye); Matter of John O., 42 AD3d 687 [3rd Dept. 2007] (no neglect where respondent hit child on hand with wax candle causing bruising); Matter of Jerrica J.,
2 AD3d 1161 (3rd Dept. 2003) (no neglect where respondent put up her
hand and foot and accidentally made contact with child in self-defense
when child slapped her, and punched child in arm during argument while
driving); Matter of Amanda E, 279 AD2d 917 [3d Dept 2001]
(“Given the [subject child’s] age, the circumstances under which the
altercation occurred and the isolated nature of the father’s admittedly
inappropriate conduct, we cannot say that Family Court erred in
dismissing the subject petitions”).
Based on what this Court’s has come to learn of Ms. A. and her
commitment to thoughtful parenting which she sets forth in her
affidavit, the Court credits that she is aware that physical punishment
is not a preferred option for discipline, nor is it Ms. A.’s primary
strategy. Rather, she sets forth how she often allows the children to
choose their consequence which most often involves loss of electronic
privileges. See Affidavit of the Respondent, para 21. This
Court also believes that Ms. A. will take every step possible to avoid
the use of physical punishment in the future even without any additional
service engagement, given the level of stress and financial hardship
that her use of physical punishment resulted in over the past 8 months.
Moreover, as previously noted, both Attorneys for the Children, the
attorney for Autumn the alleged focus of the petition and the attorney
for the 7 other children, support dismissal as the children have not
expressed any fear of their mother and have expressed significant upset
at the [*8]impact of ACS involvement here. See Affirmations in
Support of the Respondent’s motion by AFC Phillips dated December 2,
2024 and AFC Gress dated May 21, 2024. The Court believes that the delay
and stress of a trial and prolonged ACS involvement is contrary to
these children’s best interests and is not needed for their safety.
Therefore, upon this Court’s careful review of the record, the
Respondent mother’s motion to dismiss pursuant to FCA § 1051(c) is
granted as this Court finds that no further legitimate purpose
underlying Article 10 would be served by continuing ACS’s petitions
against Ms. A. and the Court’s aid is not required.
WHEREFORE, the petition against Ms. A. is dismissed with prejudice. Notify parties.
Dated: December 23, 2024
New York
ENTER:
Hon. Jacqueline B. Deane, J.F.C.
Footnotes
Footnote 1:Although not cited by petitioner here, this
Court has, in prior decisions on this issue, taken note of the Second
Department’s decision In re Jonathan M., 306 AD2d 413, 414 [2d
Dept 2003]. This decision contains language that “only at the conclusion
of a fact-finding hearing can the Family Court dismiss the petitions
upon a determination that its aid is not required on the record before
it.” However, this language appears only to be dicta, given the specific
facts before the Appellate Division. In Jonathan M., “rather than holding a fact-finding hearing, the Family Court dismissed the petitions stating that sufficient facts had not been established to sustain the petitions”
(emphasis added). Thus, the lower court’s decision was actually based
on the first prong of § 1051(c), sufficiency of the evidence, and a
fact-finding hearing was clearly required. This Court does not believe
the Second Department intended Jonathan M. to prevent a dismissal on the second prong of § 1051(c) where “the record” required by the statute does
exist prior to a fact-finding hearing AND it establishes that the aid
of the court is not required. Such an interpretation would result in
this Court having to conduct an unnecessary fact-finding hearing to
reach the same conclusion, thus needlessly spending the parties’ and
this court’s limited time and extending ACS’s intrusion when it is not
serving any useful purpose to this family. The Court has also considered
but found little guidance in the case In re Chandler D., 16
AD3d 684, 684 [2d Dept 2005], as the Appellate Division gives no case
facts or specific information as to why it found error where the Family
Court dismissed a neglect petition under § 1051(c) without a fact
finding hearing.
Footnote 2:As this Court noted in Kailynn I.,
many of the appellate cases in which § 1051(c) is cited, and in which
dismissals have been reversed, involve appeals of the Family Court’s
dismissals of cases based on the behavior of ACS in their presentment of
the petition at fact-finding. See In re Jasmine S., 1 AD3d
257, 259 [1st Dept 2003] (finding error in Family Court’s mid-fact
finding dismissal due to various delays by petitioner since failure to
prosecute was not willful); Matter of Melissa B., 225 AD2d 452,
452-53 [1st Dept 1996] (dismissal of neglect petition found to be “far
too harsh a remedy for the negligible lateness of petitioner’s
counsel”); Matter of Rhonda T., 99 AD2d 758, 758-59 [2d Dept
1984] (dismissal as sanction for improper behavior of ACS reversed).
These dismissals were reversed because there was no indication that FCA §
1051(c) was intended to be used as a sanction against the petitioning
agency.
There are also a number of appellate cases reversing Family Court
dismissals under the first prong of § 1051(c) where the Family Court
found that “facts sufficient to sustain the petition under this article
were not established” without allowing for a full fact-finding hearing
or other record to be developed by ACS. See In re Jayann B., 85 AD3d 911, 912 [2d Dept 2011] (allegations were sufficient to require a fact finding hearing to be held); In re Latanya C.,
37 AD3d 716 [2d Dept 2007] (dismissal mid-fact finding due to delays
and Court’s determination that witness was not credible was premature); Dutchess County Dept. of Social Services on Behalf of John S. v Peter B.,
224 AD2d 617 [2d Dept 1996] (dismissal based on Court’s determination
that there was no future risk of sex abuse was improper without a fact
finding hearing); Matter of Commr. of Social Services on Behalf of Clara deJ.,
186 AD2d 33, 34 [1st Dept 1992] (dismissal for failure to state a cause
of action reversed; finding of neglect was possible so fact finding
should have been held); Matter of Emanual David R., 119 AD2d
677, 677 [2d Dept 1986] (dismissal for failure to make out a prima facie
case reversed because petitioner had not yet rested). These cases are
all clearly distinguishable from the instant case in that the lower
courts precipitously dismissed the cases based on insufficient proof
that could ultimately have been established had the fact-finding
hearings been allowed to proceed to completion.
Footnote 3:These observations are ones I have made as a
Judge who has presided for the past 10 years in Kings County Family
Court, which is an incredibly high-volume courthouse. I provide these
neither as a criticism of ACS or an excuse for parents who decline
potentially helpful services, but to describe what I have come to
appreciate as the extremely difficult task of the child welfare system.
Overcoming this inherent conflict and tension in ACS’s two legal
mandates of being the same agency that enters a family’s life as an
investigator and prosecutor and then attempts to forge a supporting
working relationship with that same parent is perhaps the most
challenging task of the child welfare system.”