Matter of Kimberly A.

[*1] Matter of Kimberly A. 2009 NY Slip Op 51159(U) [23 Misc 3d 1136(A)] Decided on May 5, 2009 Family Court, Queens County Richroath, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 5, 2009
Family Court, Queens County

In the Matter of Kimberly A. Tamara A. Children Under the Age of Eighteen Years, Alleged to be Neglected by Renee S., Respondent.



NN 20280-81/06



Appearances of counsel are as follows:

Wendy Wedderburn, Esq. for Petitioner, Commissioner of the Administration for Children's Services

Carolyn Silvers, Esq., Legal Aid Society Juvenile Rights Division, Law Guardian for the Children

Daniel Moskowitz, Esq. for the respondent mother

Joseph Fredericks, Esq., Guardian ad Litem for the respondent mother

Marybeth S. Richroath, J.

Kimberly and Tamara A. originally came before the Court by petition filed against their father, Hillary A., on June 19, 2006 under docket numbers NN 10954-5/06. The petition alleged that the children had been left in the care of their former stepmother after their father's arrest on federal charges. The former stepmother did not wish to care for the girls and had no statutory obligation to do so. Therefore the Administration for Children's Services ("ACS") filed a neglect petition against Mr. A.

Issue was joined when an affidavit of service was filed with the Court on July 6, 2006. That service was accomplished by the New York City Sheriff while Mr. A. was incarcerated at the federal Metropolitan Detention Center ("MDC"). Between July 6, 2006 and June 5, 2008, the Court issued multiple orders to produce Mr. A. from federal detention, either personally or by producing him within the prison to a facility where video or telephone communication would allow him to participate in the Family Court proceedings. ACS had multiple conversations with various individuals at the federal Bureau of Prisons, none of which was successful in allowing the father to participate in the proceedings.

An individual who is placed in jeopardy by a Court proceeding has a due process right to participate in that proceeding. Family Court Act §1041; Mullane v. Central Hanover Bank & Trust Co., 339 US 306 [1950]; Matter of Dutchess County Dept. of Social Services, on Behalf of Cody M.., 196 AD2d 196 [2nd Dept. 1994] Where an individual is incarcerated, the Court cannot [*2]find that said person has willfully absented himself from Court and proceed at inquest. Matter of Dutchess County Dept. of Social Services, on Behalf of Cody M.., id. at 200; Matter of Kendra M., 175 AD2d 657 [4th Dept. 1991]. In fact, the Court is under an obligation to use all necessary means to facilitate that individual's participation in the proceeding. In re Jung, 11 NY3d 365 [2008]; Matter of James Carton K., III, 245 AD2d 374 [2nd Dept. 1994]. Child protective proceedings are civil in nature. Matter of Nicole V., 71 NY2d 112 [1987]; Matter of Commissioner of Social Services of the City of New York on Behalf of Denise R., 219 AD2d 715 [2nd Dept. 1995]. However, a finding of neglect against a respondent parent can result in the child's placement in foster care. Family Court Act §§1052; 1055. If a parent fails for at least 15 months to plan for the return of a child in foster care to that parent's care, the agency may be required to file a petition to terminate that parent's parental rights and free the child for adoption. Family Court Act §615; Social Services Law §384-b. Because the stakes are so high, and can ultimately result in the termination of a parent's rights, a Court must insure that due process is afforded to incarcerated parents at each stage of a child protective proceeding. See, In re Jung, supra; Matter of Tristam K., 25 AD3d 222 [1st Dept. 2005].

These efforts have most commonly resulted in orders that the custodial department produce the inmate in Court to participate in the proceeding. Historically, federal marshals and Bureau of Prisons personnel have refused to produce federal inmates in local courts regardless of the legal jeopardy that refusal generates because of a general concern for the security of those federal prisoners. In the current age of technology, new courthouses, such as the one in which this Court is privileged to sit, have available technological means to permit an individual to participate in the court process remotely through video technology. There are currently agreements between the New York State Department of Correctional Services ("DOCS") and the New York State Office of Court Administration ("OCA") and also between the New York City Department of Correction ("DOC") and OCA that encourage the participation by state and city inmates in Family Court proceedings by video technology. While there is a fiscal incentive to that cooperation, the correction agencies do not incur the expense of producing prisoners, there is also security inherent in the process — the inmate never leaves the secure location of the agency that is holding him. The Court has been informed in this and many other proceedings that the federal Bureau of Prisons, either does not have this technology, or will not allow its use to facilitate participation by its inmates in Family Court proceedings.[FN1] It is unclear to the Court why this is so, when federally mandated permanency for the children is at risk in those cases. Adoption And Safe Families Act of 1997 [ASFA, Pub.L. 105-89] ; see also, Family Court Act §1089.

The Court uses this decision as a vehicle to call upon the Chief Judge of New York State to reach an agreement with the Attorney General of the United States, under whose jurisdiction the Bureau of Prisons operates, whereby the Family Courts of this state could secure the production of federal prisoners where those prisoners are party to an action and issue has been duly joined. Production by video would appear to this Court to be the most efficient and least disruptive mechanism to achieve this goal, and as the experience in New York has shown, the [*3]technology exists and is currently employed. Such an agreement between the Chief Judge and the Attorney General could serve as a model for a similar agreement between the Chief Judge and the Secretary of the Department of Homeland Security with respect to parties to Family Court proceedings who are held by U.S. Immigration and Customs Enforcement.

Ultimately, on June 5, 2008 ACS withdrew its petition, conceding that because of the intransigence of the federal Bureau of Prisons, which refused to even provide the location of Mr. A. within its system, due process could not be afforded Mr. A. on the adjudication of the petition for neglect against him. ACS noted that its best information indicated that Mr. A. would not be eligible for release until November 2009, and it was unclear when he would actually be released.

When it became clear that prosecuting a petition against Mr. A. would be problematic, the agency filed the instant neglect petition against Renee S., the biological mother of the children, on October 18, 2006. In that petition the agency alleged that due to the mental illness of respondent mother, which had required her hospitalization since the early 1990's, she was not capable of providing adequate care for her daughters and therefore neglected them.

These allegations came to fact-finding before the Court on November 6, 2008; trial was continued on November 13, 2008 and concluded on April 7, 2009. The agency presented testimony from Dr. Orendain, a psychiatrist who in 2006 was employed by New York University Hospital as the unit chief for psychiatric unit number three at Woodhull Hospital. Dr. Orendain evaluated Ms. S. three times in August, October and November 2006. On each occasion Ms. S. presented very irrational behavior, was delusional, hearing voices, was not cooperative with treatment, could not understand the nature of her mental illness, had impaired reality testing and was quite aggressive, claiming that she "would kill anyone if they tried anything." Dr. Orendain, who was qualified without objection at the hearing as an expert in psychiatry based upon her curriculum vitae received into evidence as Petitioner's 1, diagnosed respondent mother with schizo-affective disorder — bi-polar type. The doctor testified that respondent needed to be medicated, and that the three involuntary hospitalizations of which she was aware had resulted when respondent stopped taking her medication, and quickly decompensated. The doctor proffered the opinion that respondent was incapable of taking adequate care of herself, and therefore also was incapable of taking care of children without neglecting them. The agency proffered medical records of respondent's hospitalization, a certified copy of a neglect finding against respondent based upon mental illness from 1995 and rested.

Respondent called the ACS caseworker, who testified that the subject children were with their former stepmother [FN2] when she initially interviewed them, and that they offered no information about their biological mother. Respondent testified herself and said that she had only had custody of the children when they were babies. In approximately 1992 she "had a nervous breakdown." She stated that BCW investigated and "gave the kids to their father." Ms. S. testified that the father took the children to Nigeria and Lagos for years, and she did not see them at all. More recently, he had returned to reside in New Jersey, and he brought them weekly for visits with her at the SVS Residence where she was living. Respondent denied in her testimony that she suffered from a mental illness, but conceded that she had been living in a [*4]residence or in the hospital since her "breakdown" in 1992. After her testimony respondent rested.

Counsel for respondent argued that the fact of his client's mental illness was not in dispute. However, he urged the unfairness of targeting her with a neglect finding. The mother has had a mental illness so severe that since the early 1990's custody has been with the father, with only sporadic supervised visitation for respondent mother. The father is incarcerated, and thus incapable of caring for the children, but due to the federal government's unwillingness to produce him for adjudication before the Court, the agency was forced to abandon its cause of action against him.

It is quite clear that the two subject children, currently 17 and 18, require assistance and services, and cannot be discharged to live on their own. It is also clear that their biological mother, the respondent before the Court, is incapable of providing care for them now that their custodial parent, Mr. A. is incarcerated. Respondent mother's mental illness does not exonerate her from the obligation to care for her children. See, Matter of Hime Y., 52 NY2d 242 [1981]. The agency provided credible and convincing proof the mental illness of Ms. S. in 2006, when the petition was filed. This proof was not contested by Ms. S.. Her current mental illness, which continues to prevent her ability to care for the children in 2006, as it did in 1992, provides a basis for the Court to find that she has neglected the subject children by virtue of failing to cooperate with treatment that would ameliorate that condition. Matter of Kayla W., 47 AD3d 571 [1st Dept. 2008]; Matter of Soma H., 306 AD2d 531 [2nd Dept. 2003]; Matter of Laura D., 270 AD2d 260 [2nd Dept. 2000]. While it may seem somewhat unfair to target respondent, who is not at fault for the mental illness from which she suffers, the Court has the obligation to consider the ultimate fate of the children, who are entitled to have a parent care for them without neglecting them. Respondent mother is not capable of doing so. In the absence of a legislative scheme that provides another alternative, the Court enters a finding of neglect against respondent mother.

Dated:May 5, 2009

Jamaica, New York

_________________________________________

Marybeth S. Richroath

J.F.C. Footnotes

Footnote 1:Although not at issue in this case, the same is true for the facilities used by the Department of Homeland Security to detain illegal immigrants prior to deportation.

Footnote 2:The former stepmother had been married to Mr. A. for years, but she never adopted the girls and has no legal relationship to them.