Matter of Madani T. (Lakrecia C.)

[*1] Matter of Madani T. (Lakrecia C.) 2017 NY Slip Op 50179(U) Decided on February 10, 2017 Family Court, Bronx County Taylor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2017
Family Court, Bronx County

In the Matter of Madani T. A Child Under the Age of Eighteen Years Alleged to be Neglected by Lakrecia C., Respondent.



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Margaret Robles, Esq., NYC Assistant Corporation Counsel, petitioner

Jessica Horan-Block, Esq., Bronx Defenders, for the Respondent

Elizabeth Johanns, Esq., Assigned counsel, Attorney for the child
Gilbert A. Taylor, J.

On January 17, 2017, the Commissioner of the Administration for Children's Services [hereinafter "ACS"] filed an Order to Show Cause seeking to restore the matter to the calendar for a hearing regarding the Respondent mother Lakrecia C. [hereinafter "the Respondent"] alleged violation of an Adjournment in Contemplation of Dismissal [hereinafter "ACD"]. On January 19, 2017, counsel for the Respondent submitted an affirmation in opposition. On January 27, 2017, ACS filed affirmations in response to the request by this court for information regarding why this matter should not be dismissed. On February 1, 2017, counsel for the Respondent filed an updated affirmation in opposition.

[*2]Procedural History/Factual Findings:

On September 30, 2015, ACS filed a petition alleging that the Respondent neglected the subject child Madani T., in that the Respondent failed to provide the subject child with proper supervision and guardianship in that:

1. a. The father of the child, Boikar T., has prior findings of neglect entered against him for domestic violence against LAKRECIA C. in the presence of the subject child MADANI T., Hon. Karen I. Lupuloff presiding. Orders of Disposition were entered under both Dockets ordering that Boikar T. complete a Batterer's Intervention program, abide by the Final Order of Protection against him that is in effect until July 1, 2016 and comply with agency supervised visits only. LAKRECIA C. was ordered to enforce the Final Order of Protection against Boikar T., ensure MADANI T. attends play therapy and comply with home visits. The Final Order of Protection against Boikar T. is a full stay away that only allows for court ordered visitation with MADANI.2. According to the ACS caseworker Boikar T. has not made himself available to ACS for referrals or visits with MADANI. Mr. T. has not engaged in any services.3. On or about September 28, 2015 school staff informed the undersigned that both LAKRECIA C. and Boikar T. pick up MADANI from school. Staff stated Boikar T. picked MADANI up from school at least three times this year. The undersigned was able to see the school permission form related to who can pick up MADANI from school; the form listed both LAKRECIA C. and Boikar T. MADANI has only been enrolled in school since September 9, 2015. School staff stated that they were not aware that there is an Order of Protection against Boikar T. on behalf of LAKRECIA C. and MADANI T.4. On or about September 28, 2015 MADANI T. stated to the undersigned that he lives with "his mother, father and cat." He also stated that he saw his father that morning and when his mother goes to work "his father watches him."5. ACS has referred MADANI for play therapy to address the domestic violence he witnessed and in accordance with the Order of Disposition however LAKRECIA C. has failed to take the child to any services stating she is too busy.

On September 30, 2015, the Respondent did not appear. The Hon. Karen I. Lupuloff paroled the child to the Respondent, entered a temporary order of protection against the non-Respondent father Boikar T. [hereinafter "the non-Respondent father"] and adjourned the matter to October 7, 2015 for return of service. On October 7, 2015, the Respondent did not appear because the child was ill. ACS submitted an affidavit of attempted service upon the Respondent and the matter was adjourned to October 22, 2015 for return of service. On October 22, 2015, the Respondent appeared. Agency supervised visits were ordered for the non-Respondent father and the matter was adjourned to December 8, 2015 for a conference, to January 29, 2016 for back end tracking for the non-Respondent father's prior neglect case regarding the child, and to February 9, 2016 for possible resolution or to choose a fact-finding date. On December 8, 2015, a conference was held but there was no resolution and the matter was adjourned to January 29, 2016. On January 29, 2016, a temporary order of visitation was entered on consent for the non-Respondent father and the Hon. Karen I. Lupuloff stated that the court would likely approve an ACD for twelve months for the Respondent. The February 9th date was vacated and the matter was adjourned to February 16, 2016 for possible resolution and back end tracking for the non-Respondent father's prior case. On February 16, 2016, ACS reported that the non-Respondent father was only minimally compliant with the dispositional orders of batterer's intervention and [*3]other services, but was recently re-engaged. The matter was adjourned to April 5, 2016 for continued proceedings. On April 5, 2016, ACS reported that the Respondent was not in full compliance with the service plan and an ACD was not possible. The matter was adjourned to June 1, 2016 for a pre-trial conference, June 14, 2016 for a settlement conference and July 18, 2016 for fact-finding. On June 1, 2016, a conference was held. ACS reported that the Respondent was compliant with services, but further confirmation was needed. The June 14th date was vacated and the matter was adjourned to June 28, 2016 for a settlement conference. On June 28, 2016, a settlement conference was held and ACS offered the Respondent a six-month ACD with conditions. The matter was adjourned to July 18, 2016 for fact-finding or resolution. On July 18, 2016, ACS reported that both parents were engaged in services and are doing well. The court accepted the terms of the ACD and adjourned the matter in contemplation of dismissal for six months, which would expire on January 17, 2017. The matter was adjourned to December 15, 2016 for post-dispositional review. On December 15, 2016, ACS submitted a report and the matter was adjourned to January 12, 2017 for status on end of supervision. On January 12, 2017, ACS stated its intention to file to extend supervision before the expiration date and the matter was marked off calendar. ACS was ordered to file the petition prior to January 17, 2017.

ACS filed its Order to Show Cause on January 17, 2017, which the Hon. Michael Milsap signed at 4:45 PM. ACS claims they attempted to file it with the Permanency Planning Unit [hereinafter "PPU"], but the office was closed and they had to file it with PPU on January 18, 2017. Counsel for the Respondent claims that supervision expired on January 17, 2017 and that the underlying neglect petition should be dismissed as a matter of law. ACS claims that Judge Milsap's signing of the Order to Show Cause on January 17, 2017 at 4:45 PM tolled the ACD time period, allowing ACS to request that the matter be restored to the calendar for a hearing regarding the Respondent's alleged violation of the ACD terms.

Legal Analysis:

In a child protective proceeding, the signing of an Order to Show Cause which grants interim relief and temporarily extends supervision, tolls the expiration of an ACD period pending further court proceedings. In Matter of Marquita W., 30 Misc 2d 1225(A) (Fam. Ct. Kings Cty. 2011), the Hon. Alan Beckoff found that FCA § 1039(f), while not using the word "toll," does provide that if the proceeding is not "so restored" to the calendar during the ACD period, then it is dismissed automatically "unless an application is pending pursuant to subdivision (e) of this section," citing Matter of Jonathan W., 256 AD2d 1174 (4th Dept. 1998), which held that where an application to restore the case to the calendar is brought prior to the expiration of the ACD order and is pending, the ACD order is not deemed dismissed. This is notwithstanding the filing in the Family Court clerk's office the day after supervision expires, as such filing is a ministerial matter and does not affect the court's order, which is in full force and effect. The court finds that Judge Milsap's signing of the Order to Show Cause and granting of interim relief clearly resulted in a tolling of the ACD time period and extending the period of supervision. The interim relief requested reads "It is hereby ordered the interim relief is granted in that supervision is temporarily extended pending a hearing on this matter."

In the instant matter, the Respondent's contention that a court order expires at the close of business on the expiration date is both incorrect and not practical. For example, in the case of an order of protection, one can only imagine the difficulty and fear of a litigant if an order of protection is obtained, but set to expire not at midnight on the expiration date, but at close of [*4]business on that date. If the order is violated at 8PM on that evening, the consequences could be grave. Furthermore, the Respondent has factual inaccuracies in her affirmation, to wit: (1) the claim that this matter was not before this Jurist on January 12, 2017 is incorrect as this Jurist presided over this matter and advised ACS to file for extension of supervision prior to January 17th; (2) the claim that Judge Milsap's court attorney signed the Order to Show Cause at 4:45 PM is also incorrect, as Judge Milsap himself signed it at that time; and (3) the claim that the order expired at close of court hours on January 17th is also incorrect, in that the order, which was signed at 4:45 PM, granted interim relief extending supervision and orders run on calendar days, not at close of court hours. Furthermore, Judge Milsap ordered service of the Order to Show Cause on or before January 18th, with which ACS complied. It is noteworthy that courts have held that once an Order to Show Cause is served, it establishes compliance with statutory authority, even if the Order to Show Cause is later returned by the clerk of the court for procedural improprieties. Voice Communications Incorporated, Inc. v. Bello, 12 Misc 3d 318 (Sup. Ct. Nassau Cty. 2006).

Respondent relies incorrectly on Matter of Casey A., 755 N.Y.S.2d 79 (2d Dept. 2002), which is distinguishable from this matter. The application to restore the matter to the calendar in Casey A. was filed three days after the expiration of the ACD period. In this matter, the application was filed on the same day the ACD period was to expire. A motion to restore the proceeding is actually a two-step procedure: the application must be made by the Court or filed by the Presentment Agency during the period of adjournment, and the Court must rule on the application prior to the expiration of the ACD period. A motion made or filed during the ACD period but left undecided until after the expiration of the ACD period is untimely, thus prohibiting the Court from taking any further action with respect to the case as its jurisdiction will have lapsed. Matter of Sheenah C., 27 Misc 3d 784 (Fam. Ct. Queens Cty. 2010). However, in the instant matter, the Hon. Michael Milsap signed the Order to Show Cause at 4:45 PM on January 17th, thereby tolling the ACD period and allowing the matter to proceed to a determination of the Order to Show Cause. The key factor here is that Judge Milsap granted ACS's request for interim relief, i.e., supervision was extended period beyond the expiration date, resulting in the matter being restored to the court's calendar on January 19th for a hearing on violation of the ACD.

FCA §1039(f) states that if application to restore the matter to the calendar is granted, the petition shall not be dismissed and shall proceed to a hearing regarding alleged violation of the ACD conditions. Thus, the time of filing of such Orders to Show Cause do not affect their validity. There are many instances where an emergency order of the court is valid prior to service of the order and filing with the clerk. For example, a remand order of a Family Court Judge removing a child from an abusive or neglectful home allows ACS to place a child in emergency care without filing with the court clerk and prior to service of process of such order or even the underlying petition. When this court advised ACS of the necessity of filing papers to extend supervision, Respondent was made aware that such application was imminent and thus, was not blindsided by ACS's last-minute application. The statutes and case law are not dispositive regarding the effect of late filing of an Order to Show Cause on the validity of a Judge's order. Therefore, a plain reading of such statutes shows that in this instances, the late filing of the order has no effect on its validity to extend supervision, and thus, restore the matter to the calendar for further proceedings. In this scenario, dismissal of the petition is not warranted.

ACS Counsel's allegations in their affirmation that "court error" took place in the handling of this case is grossly incorrect. Their description of "the court's disparate and unique policy and unnecessary and uncontrollable delay which is tantamount to 'court error'" is not only factually false, but a sweeping mischaracterization of the Court's rules and procedures. The Family Court's policy regarding deadlines for filing of Orders to Show Cause applies to ALL applicants. In its parens patriae authority to protect children, the Court can allow late filings on a case-by-case basis, especially in instances where continued supervision of the court is required. However, this in no way amounts to an invitation for constant late filings of Orders to Show Cause. There are procedures which have to be followed before Orders to Show Cause are placed on the court's calendar, including, but not limited to a thorough review of papers filed to ensure that no one's time is wasted and that the applications are both appropriately filed, correct in form and substance and comport with both Family Court Rules and relevant statutes. In the instant matter, it was not court that contributed to the delay in filing. On the contrary, it was ACS who waited until the day that the order was set to expire to request an extension. Counsel for ACS did not provide full and complete papers to the court until 2:52 PM on January 17th. Only at that point was the court able to conduct a full review of the papers, including the request for interim relief, which was not included when the papers were first submitted, but later that afternoon. The parties were before Judge Taylor on January 12, 2017, at which time he admonished ACS to file the Order to Show Cause as soon as possible, which they failed to do. Counsel for ACS's explanation about being on medical leave is summarily insufficient in that she works for a large New York City agency, which could have provided emergency coverage to make the necessary application, and should have handled this matter sooner. Not doing so is a result of agency mismanagement and is unacceptable. ACS's claim that they were at the "mercy of the Judge's pen" trivializes the importance of a thorough review and is disrespectful to the court's process. When one Judge who is unfamiliar with the facts and circumstances is presented with an emergency application for another Jurist's case, it would be improper and unethical to sign off on such applications without a thorough inquiry into the nature of the matter and whether such application is truly an emergency. ACS's desperation to hurry the matter through, expecting the court to cater to their every request grew out of its own disorganization and delay in filing.

Conclusion:

The court finds that the Order to Show Cause is filed timely, since Judge Milsap signed the interim relief on the date of expiration. His signature as a court official evinces an intention to toll the expiration of the order and extend supervision and counsel for the Respondent was on notice of the same.

WHEREFORE based on the foregoing, ACS's application to restore the matter to the calendar is granted in its entirety. The matter will be set down for a hearing on the issue of violation of the ACD conditions. Notify parties.

Dated: February 10, 2017

Bronx, NY

Hon. Gilbert A. Taylor, J.F.C.