Matter of Emmanual W. (K.B.)
Annotate this CaseDecided on December 15, 2016
Family Court, Bronx County
In the Matter of Emmanual W. A Child Under the Age of Eighteen Years
against
Alleged to be Neglected by K.B., Respondent.
XXXXX
Phoebe Azran-Rosen, Esq., NYC Assistant Corporation Counsel, petitioner
Scott Constantine, Esq., Bronx Defenders, for the Respondent
Grace Oboma-Layat, Esq., Legal Aid Society, for the child
Gilbert A. Taylor, J.
NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
TAYLOR, G., F.C.J.:
Procedural History/Factual Findings:
On October 3 2016, the Commissioner of the Administration for Children's Services [hereinafter "ACS"] filed a petition alleging that the Respondent Mother K.B. [hereinafter "the Respondent"] neglected the subject child Emmanual W., in that the Respondent failed to provide the subject child with proper supervision and guardianship in that:
According to the shelter director Tarsha M., on or about September 29, 2016, at approximately 9 pm, the Respondent Mother left the subject child with her roommate and said that she was going to return at 11 pm. As of today's date the respondent mother has not returned to the shelter.
According to ACS Child Protective Manager Surayya R., on October 3, 2016, the respondent mother informed ACS that after leaving the shelter on September 29, 2016, she was raped and held hostage by an ex-paramour. The Respondent Mother stated that she filed a police report and went to the Hospital after the alleged incident. The Respondent Mother provided ACS a copy of a police report, dated October 2, 2016 but did not attempt to contact the shelter or [*2]return for the subject child between September 29, 2016 and October 3, 2016. On October 3, the Respondent Mother indicated to ACS that she was hospitalized but provided hospital discharge papers indicating that she left the hospital against medical advice on October 2.
According to ACS CPM Ms. R., on October 3, 2016, the Respondent Mother admitted that instead of going to the shelter to care for the subject child or inquire about him via shelter staff, the respondent mother proceeded to drink beers while riding on the subway all night long the previous night.
According to Bronx Family Court records on or about April 9, 2010, the respondent mother was adjudicated neglectful of the subject child Emmanual W. for abusing alcohol and cocaine. Emmanual was released to the Respondent Mother at disposition. On or about February 15, 2011, the subject child Emmanual was removed from the respondent mother's care because her whereabouts were unknown.
On October 3, 2016 the Respondent was arraigned on the petition, waived a reading and entered a general denial. The child was remanded, supervised visitation was ordered and the Respondent requested a hearing to have the child returned to her care pursuant to FCA §1028. On this day, the Respondent was sent to the Family Treatment Court [hereinafter "FTC"] office for immediate drug testing. The matter was adjourned to October 4, 2016 for a hearing.
On October 4, 2016, it was reported that the Respondent tested positive for cocaine at the FTC office. The Respondent informed the court that she is in a Department of Homeless Services single woman's shelter and was seeking entry into a domestic violence shelter. Counsel agreed to waive the statutory time and commence the hearing next week. The matter was adjourned to October 14, 2016 for a hearing. On October 14, 2016, the hearing commenced and the court took judicial notice of the FTC drug test results from October 3, 2016 reflecting a positive toxicology for cocaine. The Respondent was referred to FTC for further testing and the matter was adjourned to October 17, 2016 for a continued hearing. On October 17, 2016, the Respondent did not appear because she was hospitalized with pancreatitis and it was reported that the Respondent had tested positive for opiates in FTC on the date prior.
The matter was adjourned to October 18, 2016 for a continued hearing. On October 18, 2016, the Respondent submitted discharge papers indicating that she was given morphine for pain to explain why she had tested positive for opiates in FTC. The hearing commenced and Petitioner's Witness No.1, Ms. N., the Case Planner from Leake and Watts Foster Care Agency testified. The matter was adjourned to October 20, 2016 for a continued hearing.
On October 20, 2016, Petitioner's Witness #2, CPS Ms. D. testified. The Respondent was referred to FTC for immediate drug testing again and the matter was adjourned to October 21, 2016 for a continued hearing. On October 21, 2016, cross-examination of Ms. D. commenced and the FTC drug tests from the day prior revealed that the Respondent had tested positive for Opiates. The matter was adjourned to October 25, 2016 for a continued hearing.
On October 25, 2016, testimony of Ms. D. was completed and the Respondent was referred to FTC for immediate drug testing again. The matter was adjourned to October 26, 2016 for a continued hearing. On October 26, 2016, it was reported that the Respondent tested negative for all substances. No testimony was taken on this day and the matter was adjourned to October 31, 2016 for a continued hearing.
On October 31, 2016, Petitioner's Witness #3, ACS Supervisor Ms. O. testified. The parties and all counsel consented to have the Court's Mental Health Services Department [hereinafter "MHS"] complete an Imminent Risk Assessment and Evaluation of the Respondent [*3]to provide more information for this case and the matter was adjourned to November 1, 2016 for a continued hearing. On November 1, 2016, it was reported that the child was suspended for two days from his after-school program for fighting. No testimony was taken, the Respondent was sent to FTC for immediate drug testing and the matter was adjourned to November 2, 2016 for a continued hearing.
On November 2, 2016, the maternal uncle Ronald W. [hereinafter "Mr. W."] filed a custody petition, for which the court ordered summons personal service upon the Respondent. The court ordered ACS to explore Mr. W. as a relative resource for foster care placement of the child Emmanual W. The testimony of Ms. O. was completed on this day and the matter was adjourned to November 3, 2016 for a continued hearing. On this date, it was reported that the Respondent mother tested negative for all drugs at her last drug test.
On November 3, 2016, no testimony was taken. The Respondent stated that she supported Mr. W.'s custody petition and supported him being used as a foster care resource for the child, and it was reported that the child wanted to reside with Mr. W. The court ordered expanded visits between the Respondent and the child over ACS's objection and the Respondent was referred once again to FTC for immediate drug testing. The matter was adjourned to November 14, 2016 for a continued hearing.
On November 14, 2016, no testimony was taken and the completed Imminent Risk Report was received from MHS by the Court and all counsel. The court vacated the remand and temporarily directly placed the child with the uncle Mr. W., who submitted to the court's jurisdiction and withdrew his custody petition. On this date, it was reported that the Respondent tested negative for all drugs at her last drug test. The matter was adjourned to November 15, 2016 for a continued hearing.
On November 15, 2016, the Respondent was hospitalized again and no testimony was taken. The matter was adjourned to November 16, 2016 for a continued hearing. On November 16, 2016, no testimony was taken and the matter was adjourned to November 17, 2016 for a continued hearing.
On November 17, 2016, the Respondent's case began and the Respondent testified. The matter was adjourned to November 18, 2016 for a continued hearing. On November 18, 2016, the Respondent's testimony continued, she was sent to FTC again for immediate drug testing and the matter was adjourned to November 29, 2016 for a continued hearing.
On November 29, 2016, direct examination of the Respondent was completed and her drug test came back negative for all substances and the matter was adjourned to December 1, 2016 for a continued hearing. On December 1, 2016, cross-examination of the Respondent commenced and the matter was adjourned to December 2, 2016 for a continued hearing. On December 2, 2016, cross-examination of the Respondent was completed and re-direct testimony commended. The Respondent was sent to FTC and ACS was granted leave to permit the Respondent to have an unsupervised visit with the child for the coming weekend. The matter was adjourned to December 5, 2016 for a continued hearing. On December 5, 2016, re-direct examination of the Respondent was completed. It was reported that the Respondent tested negative for all drugs in FTC at the last court date. The court also agreed to take judicial notice of all of the FTC test results taken to-date and the matter was adjourned to December 6, 2016 for a continued hearing.
On December 6, 2016, the completed Imminent Risk Report was entered into evidence and the Respondent was referred to FTC. All sides rested, oral summations were given, the [*4]court reserved decision and the matter was adjourned to December 15, 2016 for a decision on Respondent's FCA §1028 application. The Respondent tested negative for all drugs on this date.
Testimonial and Documentary Evidence:
The following documents were received into evidence:
Petitioner's #1 — Order of Fact-finding and disposition, from Kings County Family Court; Petitioner's #2 — Permanency Hearing order;
Petitioner's #3 — the Respondent's hospitalization discharge form from October 2, 2016; and
Court's #1 — MHS Imminent Risk assessment of the Respondent
The following witnesses testified:
Petitioner
1. ACS CPS Ms. N.;
2. ACS CPS Ms. D.; and
3. ACS Supervisor Ms. O.
Respondent
1. Respondent mother K.B.
A summary of the testimonial evidence is as follows:
The Respondent testified that she left her child in the care of her roommate, Ms. H., at the shelter in the evening of September 29, 2016 to go buy clothes for her son at a department store in the Bronx. She testified that when she arrived in the vicinity of 149th Street and 3rd Avenue in the Bronx, she encountered her ex paramour R.L., who asked her to go with him to his cousin's apartment on Willis Avenue in the Bronx. She testified that when she arrived at the apartment, she was not allowed to leave and that she was held captive by R.L., who blocked the door preventing her from being able to leave. She testified that R.L. took her cell phone and sent text messages to her roommate at the Shelter. The Respondent testified that R.L. and his cousin were drinking and using cocaine the entire time that she was being held captive in the apartment. The Respondent denies using cocaine with them at the apartment. The Respondent testified that she was sexually assaulted by R.L. while being kept in the apartment. She further testified that she was only able to escape after R.L. and his cousin had fallen asleep on the kitchen table.
The Respondent testified that when she escaped the apartment, she went to a bodega that was nearby and called 911. She testified that she was taken by ambulance to Lincoln Hospital and treated. Petitioner's #3 in evidence are the discharge papers for the Respondent from Lincoln Hospital reflecting that she was treated there on Sunday, October 2, 2016 for sexual abuse. The Respondent testified that she requested that the hospital social worker call the shelter where she had been residing to inquire about her child. She testified that the hospital social worker told her that the child Emmanual had been removed from the shelter by ACS and further testified that the hospital social worker had spoken to someone at Emergency Children's Services at ACS. It is also noted on the discharge papers that the Respondent left the hospital against medical advice.
The Respondent testified that when she left the hospital, she went back to the shelter where she had been residing with the child and was told that she had been logged out of the shelter for being absent without explanation. She was not permitted to stay at the shelter that day. She retrieved some of her belongings and left. The Respondent testified that she rode the subway all night on October 2, 2016, drinking liquor and testified that she was given cocaine by a stranger [*5]on the subway who saw her crying and attempted to console her. She testified that she did not remember what train she was riding and testified that she rode the subway all night long until the next day. The Respondent testified that she changed her clothes in a store and went to the ACS Borough Office in the Bronx the next day on October 3, 2016 for a meeting to discuss this case.
Ms. N., the case planner from Leake and Watts foster care agency testified that the Respondent told her that she had gone out to buy milk on Friday, September 29, 2016 when she was abducted by her former partner. Ms. N. testified that the Respondent told her that she was held by her former partner until Sunday, October 2, 2016 when she left, went to the hospital and filed a police report. Ms. N. testified that the Respondent told her that she had been raped by her former partner. Ms. N. testified that the Respondent told her that she had never used drugs and said that Emmanual had never been in foster care before. Ms. N. testified that after reading the Respondent's case file, she learned that Emmanual had been previously placed in foster care and learned that the Respondent did have a history of drug misuse. Ms. N. testified that the Respondent did enroll in the Next Steps Program for substance abuse treatment. Ms. N. also testified about the visitation that was taking place between the Respondent and Emmanual.
Ms. D., the ACS Child Protective Specialist testified that ACS received the case on September 30, 2016 based on allegations of inadequate guardianship. The allegations in the report were that the Respondent had left her child unsupervised at a domestic violence shelter. Ms. D. testified that she spoke with the shelter manager who reported that the child Emmanual had been left without parental supervision with the Respondent's roommate at the shelter. Ms. D. testified that the shelter manager told her that the Respondent's roommate at the shelter reported having last heard from the Respondent via text message at midnight on September 30, 2016. The shelter manager told Ms. D. that roommates in the shelter were allowed to watch each other's children for a three-hours maximum if they completed a child care form. She testified that the child Emmanual had told her that the Respondent was across the street from the Shelter at a NYCHA housing development seeing a friend of his uncle's and also said that his mother was at the police precinct because he heard the shelter manager say that his mother may have been arrested.
Ms. D. testified that she interviewed the Respondent's roommate at the shelter who stated that she had received two text messages from the Respondent on the evening of September 29, 2016 stating that the Respondent had gotten $100 dollars and would give her $25 dollars for watching Emmanual and received a third text message from the Respondent stating that she was on the Brooklyn Bridge. Ms. D. interviewed the Respondent who said that she had been out window shopping on 149th and 3rd Avenue in the Bronx before being held hostage and raped by her ex-boyfriend from Virginia. Ms. D. testified that the Respondent gave her a copy of the police report that had been filed on October 2, 2016 and a copy of her discharge papers from Lincoln Hospital's emergency room. Ms. D. testified that the Respondent was not specific in stating exactly where she had been held hostage.
Ms. D. testified that she spoke with police officer J., who told her that the police had questions about the truthfulness of the police report that the Respondent filed about this incident. Ms. D. testified that police officer J. told her that he had interviewed people in the vicinity of the shelter in which the respondent was residing and that he observed video footage which led him to have questions about whether the Respondent had told the police the truth about her abduction.
Ms. O., the child protective specialist supervisor, testified that the Respondent met her in [*6]the borough office between 9:15am and 9:20am on October 3, 2016. She informed the Respondent that a case was being filed in Court against her for leaving her child at the shelter. Ms. O. testified that the Respondent told her that she had been raped. She testified that the mother was well dressed and smelled of alcohol. Ms. O. testified that the Respondent admitted that she had been riding the subway and drinking beer all night. Ms. O. testified that she spoke with police officer J. who stated that there was no real investigation taking place because the Respondent had been uncooperative.
Legal Analysis:
It is not disputed that on or about September 29, 2016 the Respondent left the child Emmanual W. with her roommate at the shelter in which they were residing and did not return for several days. Her reasons for doing so are being disputed at this hearing. The Respondent mother admits that she did not return to the shelter to attend to the child Emmanual for more than three days, but explains her actions as being due to her being held captive against her will by her former paramour R.L. at his cousin's apartment in the Bronx.
As contained in Court's Exhibit #1, the Respondent admitted to the mental health services staff as part of the imminent risk assessment that she had made some mistakes on the day of the incident, which included accompanying her ex-paramour R.L. back to his apartment where she relapsed on alcohol. The Respondent told the MHS evaluator that she had used cocaine while riding the subway. The court can infer that the Respondent had been a survivor of domestic violence, as evidenced by the fact that she was residing in a domestic violence shelter when these events transpired.
In the imminent risk assessment report that is in evidence, the mental health evaluator wrote that the Respondent exhibited lapses in judgment which impacted her safety and the safety of her child. The Respondent was incapable of resisting R.L.'s intimidation and was unable to transform her intentions into protective action that would have allowed her to return to her son on the evening of September 29, 2016, which would have helped her to avoid relapsing. The evaluator also wrote in the report that the Respondent minimized the aggression and influence that R.L. had over her and her child. The evaluator wrote in the report that the Respondent had a history of cocaine and alcohol abuse for which she was treated in 2009 and had achieved some years of sobriety. Finally, it was also noted in the report that the Respondent and Emmanual share a strong and secure bond.
This court does credit the credible testimony of the Respondent that she was a victim of domestic violence and intimate partner sexual assault at the hands of R.L. from September 29, 2016 through October 2, 2016. With the exception of some minor inconsistencies, the testimonial and documentary evidence at this hearing does support this assertion made by the Respondent. There is undisputed evidence that the Respondent did file a police report against R.L., it is very plausible that R.L. did take the Respondent's cell phone while holding her against her will and the overall sequence of events as explained by the Respondent does seem plausible. The Court however does not credit the Respondent's statements that she did not use alcohol or cocaine while being held by R.L. The Respondent admitted to alcohol use when interviewed by MHS and the court does not credit the testimony given by the Respondent that she received cocaine from a stranger on the subway. It is highly plausible that the Respondent used cocaine with R.L. and his cousin while they held her against her will. What is not known is whether the Respondent used such cocaine freely and willingly or whether she was forced to do so by R.L.
It is well established that substance abuse and domestic violence are linked with each [*7]other for male batterers and there is evidence of a domestic violence-substance abuse relationship for victims as well. Studies of domestic violence frequently indicate high rates of alcohol and other drug use by perpetrators during abuse. See Linkage of Domestic Violence and Substance Abuse Services; National Criminal Justice Reference Services Final Report by Collins, Spencer, Snodgrass, Wheeless (May 29, 1999).
The Respondent has recently been testing negative for all drugs and alcohol and has enrolled in a substance abuse treatment program to regain her sobriety. The Respondent has been actively visiting with the child Emmanual and has been actively engaging with the agency related to her service plan.
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 child[ren]." There must be evidence that the harm or danger is "imminent," that is, "near or impending, not merely possible" (Nicholson v. Scoppetta, 3 NY3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). The statute further requires that upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. 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 (Id. at 378—379, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Naomi R., 296 AD2d 503, 745 N.Y.S.2d 485 [2d Dept. 2002]).
While the Respondent did have a serious lapse in judgment which resulted in her using cocaine and leaving her child for days resulting in his return to foster care, the Court does find that there are orders that can be made to allow the child Emmanual to safely return to his mother's care. This will require that the Respondent change people, places and things in her life which had been triggers leading to her relapse. The Court finds that the child Emmanual's protective capacity at the age of 11 in addition to these orders will enable him to safely return to the Respondent's care at this time.
Conclusion:
The court finds that continued removal of the child Emmanual from the Respondent K.B. is unnecessary to avoid imminent risk to the child's life or health. In reaching this decision, this court has carefully weighed the evidence before it. It has reviewed the transcripts and the documents admitted into evidence. This court has considered the arguments made by all counsel and the concerns expressed by ACS counsel. This court finds that ACS has not presented evidence sufficient to show that the child Emmanual would be at imminent risk if returned to the respondent mother with additional orders being made by this Court.
ORDERED, that the subject child Emmanual is temporarily released to the custody of his respondent mother pursuant to FCA § 1028, pending a final order of disposition or further order of the court, under the supervision of NYC ACS and upon the following terms and conditions:
1. K.B. is to cooperate with reasonable ACS supervision over her household, including allowing ACS access to complete announced and unannounced visits to her home.
2. ACS is directed to visit the Respondent's home and to meet with both the Respondent and Emmanual during each visit at least one time per week for the next four (4) weeks. The Respondent is ordered to allow ACS staff to interview the child Emmanual separate and apart from her whenever it is requested.
3. K.B. is to stay away from and have absolutely no contact with R.L. and is to enforce any orders of protection that may be in place on her behalf against R.L.
4. K.B. is to stay away from and have no contact with any and all family members and friends of R.L.
5. K.B. is not to leave the child Emmanual alone unless there is another responsible adult present who has agreed to supervise him.
6. K.B. is to immediately enroll in trauma-based cognitive behavioral psychotherapy from a licensed mental health provider.
7. K.B. is to immediately enroll in domestic violence counseling services.
8. K.B. must comply with and accept a referral for intensive PPRS services.
9. K.B. must enroll in and complete a parenting skills course.
10. K.B. must submit to weekly drug/alcohol testing on no more than 4 hours' notice and test negative. In addition to being tested in her drug program and by ACS, the Respondent is Ordered to appear at Family Treatment Court here in the Bronx County Family Court to be drug tested during the weeks of December 19th, January 2nd, January 9th and January 16th.
11. K.B. must immediately enroll in Family Trauma Focused Therapy with her son Emmanual.
AND IT IS FURTHER ORDERED, that pursuant to FCA § 1112(b), this order is stayed until December 16, 2016 at 5:00pm. Nothing in this order shall prohibit the petitioner from waiving the stay in the event that ACS wishes to return the child prior to December 16, 2016 at 5:00pm.
WHEREFORE based on the foregoing, the application for return of child pursuant to FCA §1028 is granted. Notify parties.
Dated: Bronx, New York
December 15, 2016
ENTER:
___________________________
Hon. Gilbert A. Taylor, J.F.C.
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