Matter of Administration for Children's Servs. v Debra W.

[*1] Matter of Administration for Children's Servs. v Debra W. 2010 NY Slip Op 51568(U) [28 Misc 3d 1231(A)] Decided on August 13, 2010 Family Court, Bronx County Sherman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
Family Court, Bronx County

In the Matter of a Contempt Proceeding Under Article 1 of the Family Court Act Administration for Children's Services, Petitioner,

against

Debra W., C, Respondent.



NN 19867-71/2010



Michael Cardozo, Corporation Counsel of the City of New York

Gilbert A. Taylor, Special Assistant Corporation Counsel, Administration

for Children's Services of the City of New York (Amanda Martinez, Esq.and Denise Altro, Esq. of counsel) for Petitioner

The Bronx Defenders - Family Defense (Scott Constantine, Esq.

and Milinda Kakani, Esq. of counsel) for Debra W., Respondent

Keith Brown, Esq., New York, New York, Attorney for the Child

Carol R. Sherman, J.

On August 4, 2010, the Administration for Children's Services (ACS) moved by order to show cause to punish Debra W. (Respondent Mother) for civil contempt for disobedience to lawful mandates of the court, pursuant to Judiciary Law § 753 (A) (3), which is made applicable to the Family Court pursuant to Family Court Act § 156. ACS alleged that the Respondent Mother's violations of court orders were calculated to, and did impair, defeat and/or prejudice its rights and/or remedies as the Petitioner in the pending child neglect proceeding, NN 19867-71/2010.

On July 23, 2010, ACS filed child neglect petitions, NN 19867-71/2010, pursuant to Family Court Act Article 10, against Respondent Mother in Bronx County Family Court. The petitions alleged that a hospital social worker stated that the child H.M., two years of age, had been in the [*2]hospital since January 2009, due to his failure-to-thrive and developmental delays, and that he had special needs, a G-tube, which was required for feeding, and a colostomy bag, and that he required exceptional care and special medical equipment. The social worker stated that Respondent Mother had taken the child on a visit and then refused to return him to the hospital. She did not have necessary medical supplies, nor had she completed the medical training to care for the child. When Respondent Mother returned the child to the hospital on or about July 6, 2010, the child was "observed by hospital staff to be dehydrated with sunken eyes and dry lips. The subject child had also lost approximately 20 percent of his body weight." The Petition also alleged that in January 2010 she attempted to remove the child from the hospital without permission and the police had to be called. In the seven months prior to June 2010, Respondent Mother had visited with the child only three times and had not called the hospital to inquire about him. The Petition further stated that the four children who resided with Respondent Mother: E.W., three and one-half years; M.M., two years (the twin brother of H.M.); O.M., one year; and, S.M., two months; did not have up-to-date immunizations. The Petition alleged that all of the children were neglected children or in imminent danger of becoming neglected.

On July 23, 2010, an ACS Attorney and an ACS Caseworker appeared before the Hon. Carol Sherman. The Caseworker stated that he had told Respondent Mother of that day's court date and she told him she would be present. However, she did not appear. He informed the Court that he was not certain as to the whereabouts of the Respondent Mother and the subject children. ACS requested the Court to remand the children to the custody of the ACS Commissioner. The Court directed the ACS Caseworker to step outside to telephone Respondent Mother to inquire as to where she and the children were, and arrange to meet with her. The case was recalled, and the ACS Caseworker returned to court and said that he had spoken to Respondent Mother. She had refused to divulge her location and that of the children. He said he had scheduled a meeting with her at 5:00 P.M. that evening at the ACS Brooklyn Field Office. Based on Respondent Mother's refusal to disclose her whereabouts and that of the children, the Court issued a Warrant of Arrest for Respondent Mother, and ordered production of the children, but stayed execution of the Warrant, directing Respondent Mother to appear voluntarily in Court on July 26, 2010, with the children. The Court granted ACS's request to remand the child, H. M., who remained hospitalized, but denied ACS's request to remand the four children who resided with Respondent Mother. The Court instructed the ACS Caseworker to inform Respondent Mother of its mandate that she appear in court on July 26, 2010, provide her with the stayed warrant, again request information as to where she and the subject children were residing, and inquire as to the children's health care.

On July 26, 2010, Respondent Mother did not appear before the Court. The ACS Caseworker informed the Court that Respondent Mother had not appeared for the meeting he arranged with her on Friday, July 23, 2010, at the Brooklyn Field Office. He stated that after he waited for her, he then went to the apartment in Brooklyn, in which the Maternal Grandmother and Maternal Great Grandmother resided. He was informed that Respondent Mother and the children were not there, and he was not provided with any further information. The ACS Caseworker said that he left a copy of the July 23, 2010 stayed Warrant on the door of that apartment. He said he had learned from staff at the shelter in which Respondent Mother and the children had been residing that they had not returned to the shelter. The Caseworker again told the Court that he did not know the whereabouts of Respondent Mother and the children. The Court then issued a Warrant of Arrest [*3]dated July 26, 2010, directing "the arrest of Respondent Mother, and in conjunction with the arrest, that Respondent Mother and subject children be brought before the Court." The Court then remanded all the children to the custody of ACS, finding it contrary to the health and safety of the children to remain with Respondent Mother based on allegations in the Petition and that the location of the subject children was unknown.

On Monday, August 2, 2010, Respondent Mother, having been arrested on July 28, 2010, was brought before the Bronx County Family Court (Jeanette Ruiz, J.), pursuant to the Warrant issued on July 26. At the August 2, 2010 appearance, Judge Ruiz orally ordered Respondent Mother to inform the Court and ACS of the whereabouts of the subject children. Respondent Mother maintained that she left the children with the Maternal Grandmother on July 28, when she was arrested, and she did not know their current whereabouts. She provided the names of the children's Maternal Grandmother, Maternal Great Grandmother, Maternal Uncle, and Maternal Aunt. However, she did not provide the Court or ACS with their telephone numbers, or addresses, other than the Brooklyn address at which she was arrested. Further, Respondent Mother did not provide the names of or contact information for any other persons who might know the whereabouts of the children. Judge Ruiz extended the commitment of Respondent Mother pursuant to the Warrant dated July 26, 2010 to the next day, August 3, 2010, before this Court.

On August 3, 2010, Respondent Mother appeared before this Court. The Court ordered her to provide information as to the whereabouts of the children, and the names, addresses, and telephone numbers of all relatives and friends with whom the children might be residing and/or who might know where the children were located, and/or arrange for the children to be produced in court or at an ACS office. Respondent Mother claimed that she had no information as to the children's location. Respondent Mother claimed she could not contact anyone to obtain information as to the children because she was incarcerated and did not have access to a telephone. The Court directed Respondent Mother to consider all persons who could have information as to the children, and stated the Court would recall the case and have ACS provide her with a cell phone. The case was recalled, and the ACS Caseworker provided Respondent Mother with a cell phone in the courtroom. The Court told Respondent Mother she could telephone any persons she wished to in an effort to locate the children. Respondent Mother telephoned the Great Grandmother's home and spoke to someone residing in the home. After the conversation, Respondent Mother reported to the Court that she was unable to provide any information as to the location of the four subject children or the Maternal Grandmother. The Court admonished Respondent Mother again to consider any and all family members or friends with whom the children could be residing and make telephone calls from the courtroom so that the children could be produced. The Respondent Mother claimed that she did not know any other telephone numbers because they were stored in her cell phone, which she left in the Great-Grandmother's home in Brooklyn. The Court then directed Respondent Mother and her attorney to arrange for someone in that apartment to bring the cell phone to court the next day. The Court continued the remand of Respondent Mother, stating that Respondent Mother would be released as soon as the children were produced. The Respondent Mother's cell phone was never brought to court.

On August 4, 2010, the Court again ordered Respondent Mother to provide information to assist ACS in locating the children and again informed her that she would be released when the children were produced. Respondent Mother provided the Court with the names of her two sisters. [*4]She claimed that she did not know their addresses, birth dates, or any contact information. She also provided the name of a brother who, she said, lived in Charlotte, North Carolina.She could not recall hisaddress, telephone number or birth date as well. The Court again stated that Respondent Mother held the "keys" to her incarceration in that the Court would release her when the children were found.

Testimony in the civil contempt proceeding commenced on August 4, 2010. Prior to hearing testimony, the Court delineated the Orders and directives directed at Respondent Mother that allegedly she had violated and/or with which she had failed to comply. These included:

Warrant, execution stayed, issued July 23, 2010;

Warrant, issued July 26, 2010;

Oral Orders of the Court issued to Respondent Mother on

August 2, 3, 4, 5, 6, 9, and 10, 2010, that directed her: a) to produce

the subject children in court or at an ACS office and/or to arrange for the

production of the children; and, b) to provide the Court and/or ACS

with the location of the children, and/or the names, addresses, and contact

information for any and all persons who could provide information as to the

children's location.

The Court then heard testimony on August 4, 2010, and continued the hearing to August 5, 6, 9, and 10, 2010. ACS called as witnesses the ACS Caseworker, NYPD Sergeant Guang Zeng, NYPD Sergeant Maurice Chisolm, and Respondent Mother, Debra W. Respondent Mother testified, but asserted her Fifth Amendment privilege against self-incrimination in response to many of the questions posed. Respondent Mother did not call any witnesses to testify on her behalf. The Children's Attorney did not call any witnesses to testify. The Court admitted into evidence as Petitioner's Exhibit 1, the NYS Oral Transmittal Report (ORT) of Suspected Child Abuse and Maltreatment made by the hospital social worker on or about July 6, 2010 concerning the child H.M. The Court took judicial notice of the Warrant, execution stayed, issued July 23, 2010, and the Warrant issued July 26, 2010. The Court also took judicial notice that Respondent Mother had been incarcerated since July 28, 2010, that she remained incarcerated as of August 10, 2010; that on August 2, 2010, in an appearance before Judge Ruiz, Respondent Mother provided the names of her mother, grandmother, uncle, sister and brother; that on August 3, 2010, Respondent Mother made a telephone call to the home of the children's Maternal Grandmother and Maternal Great Grandmother and spoke to someone; that on August 4, 2010, Respondent Mother provided the Court with the names of her two sisters and her brother; that on August 6, 2010, Respondent Mother provided descriptions of her children to be used by ACS to file a missing persons report.

As of August 12, 2010, H.M. remained hospitalized, and the whereabouts of E.W., M.M.,

O.M., and, S.M. were unknown.

PETITIONER'S CASE

Testimony of ACS Caseworker

On August 4, 2010, the ACS Caseworker testified that he was assigned to the case as a result of the ORT received on July 6, 2010. A Child Safety Conference was scheduled at the hospital on [*5]July 22, 2010. The ACS Caseworker had arranged with Respondent Mother to pick up her and her four children at the Bronx shelter in which they resided, and bring them to the hospital for the conference. The ACS caseworker went to the shelter at the scheduled time, but neither Respondent Mother nor the children were there. Nor did Respondent Mother appear at the conference. On that same day, the ACS Caseworker spoke to Respondent Mother by telephone at 9:17 P.M., and informed her that ACS would be filing a child neglect case against her the next day, July 23, 2010, in Bronx County Family Court, and would request a remand of the four children residing with her, in addition to the child H.M., who remained hospitalized. Respondent Mother asked if her children would be taken away, and the Caseworker responded that ACS would be requesting that in court. The ACS Caseworker told Respondent Mother that he would provide her with carfare to go to Court, and Respondent Mother said she would appear in Court. On July 23, 2010, the ACS Caseworker left Respondent Mother a voice mail as to the time, courtroom, and Judge who would hear the neglect case that ACS had filed.

On July 23, 2010, the ACS Caseworker filed a neglect petition against Respondent Mother. The Caseworker and ACS attorney appeared before the Court, but Respondent Mother did not appear. During the hearing and at the Court's direction, the ACS Caseworker telephoned Respondent Mother and asked her for her whereabouts, but Respondent Mother refused to provide that information. The Caseworker arranged to meet her that evening at 5:00 P.M., at the ACS Brooklyn Field Office. He told her that she had to appear with the children in Court on July 26, 2010, and that he had copies of documents to give her.

Respondent Mother did not appear at the meeting. The ACS Caseworker then went to the apartment of the Maternal Grandmother and Maternal Great Grandmother, in Brooklyn, New York. The Caseworker was told by the Maternal Grandmother that she did not know the whereabouts of the Respondent Mother and the children. The Caseworker left a copy of the July 23, 2010 Warrant, execution stayed, in an envelope on the door of the apartment. Later that evening, the Caseworker left a voice mail for Respondent Mother stating that she had to appear in Bronx County Family Court with the children at 9:00 A.M. on July 26, 2010. He did not inform her of the stayed warrant issued by the Court.

On July 26, 2010, Respondent Mother did not appear in Court. The Court issued a warrant for her arrest and for her to produce the children. The Court then remanded the children to ACS.

On July 27, 2010, Respondent Mother contacted the Caseworker by telephone. She said she would not speak to the Caseworker and insisted on speaking to an ACS Supervisor. The Caseworker passed the telephone to the Supervisor. The Caseworker testified that because Respondent Mother did not speak with him, he did not inform her of what had transpired in court on July 26, 2010, nor did he inform her of the Warrant issued by the Court. In that call, Respondent Mother told the ACS Caseworker that ACS was not trying to help her and only hinder her. She said that if ACS tried to take her children, she would not let that happen. She said Court was a waste of time and that she did not want ACS to file papers in Court.

On July 28, 2010, the ACS Caseworker brought the Warrant issued on July 26, 2010 to the 70th Police Precinct, Brooklyn. The ACS Caseworker, two additional ACS Caseworkers and two Police Officers went to the home of the Maternal Grandmother/Maternal Great Grandmother. According to the ACS Caseworker, the two Police Officers were allowed into the apartment by the Maternal Grandmother. However, the Police Officers did not bring any children out of the home. [*6]The ACS Caseworker asked the Grandmother if he could enter the apartment, but the Grandmother did not allow him or any of the ACS caseworkers into the apartment. He said he heard children's voices in the apartment.

After a period of time, the Respondent Mother and the child E.W. entered the hallway in front of the Grandmother's apartment. The child entered the apartment as Respondent Mother was arrested by the police officers. The Caseworker testified he could not reach E.W. before he entered the apartment. The ACS Caseworker said he was in the hallway for about two hours. He never had access to the children that day.

On July 29, 2010, the Caseworker returned to the apartment with two Police Officers. The Maternal Great Grandmother allowed the Caseworker into the home. However, neither the Maternal Grandmother nor the children were present in the home. The ACS Caseworker asked Maternal Great Grandmother the location of the children, however, he was not given any information as to where to find the children.

Testimony of NYPD Sergeant Guang Zeng

On August 5, 2010, Sergeant Zeng testified that on July 28, 2010 he was an Impact Supervisor and supervised new recruits at the 70th Precinct, Brooklyn. At about 7:00 P.M. that day, at the request of two Police Officers, he went to the apartment building of the Maternal Great Grandmother. The two Police Officers were already at that location. Sergeant Zeng testified that he had been provided by ACS with a Court Warrant to place Debra W. under arrest and remove her four children. He also saw the Warrant in the possession of the Police Officers at the building. Sergeant Zeng met a woman coming into the building with a shopping cart and a young child. Sergeant Zeng helped her carry the cart up the stairs to the second floor, and thus walked towards the family's apartment. The ACS Caseworkers, who were on the second floor in front of the family's apartment, identified the woman as Respondent Mother, Debra W. In court, Sergeant Zeng identified Respondent Mother as the woman he met entering the apartment building and later placed under arrest. Upon establishing the identity of Respondent Mother, Sergeant Zeng testified that he turned to her, and told her that he had a Warrant for her arrest and showed her the Warrant dated July 26, 2010. Respondent Mother pointed to her name. Sergeant Zeng told Respondent Mother that, pursuant to the Warrant, the police had to arrest her and had to take her children.

When Sergeant Zeng and Respondent Mother reached the second floor, the Maternal Grandmother was standing in the open doorway to the family's apartment, holding a baby. Sergeant Zeng testified that he was five feet from the apartment doorway when he was speaking to Respondent Mother. As the Sergeant turned to Respondent Mother, the child with her ran into the apartment. As he was placing Respondent Mother under arrest, she yelled loudly and repeatedly at the Maternal Grandmother, "Don't open the door." The Maternal Grandmother yelled at Respondent Mother, "Don't point out anything; don't say nothing; call your lawyer."

Respondent Mother refused to put her hands behind her back to be handcuffed and refused to walk down the stairs. She had to be carried down the stairs by two Police Officers. Respondent Mother was charged with resisting arrest.

Sergeant Zeng then knocked on the door of the apartment of the Maternal Grandmother and Maternal Great Grandmother. No one opened the door. He attempted to speak to the family in the [*7]apartment to persuade them to let him and ACS into the apartment. He testified he heard children's voices in the apartment, but he could not force entry into the apartment because the Warrant specified the Respondent Mother's shelter address and did not list the address of the Brooklyn apartment. He also said that he did not remove the baby in maternal grandmother's arms because he did not believe it would be safe to do so.

Testimony of NYPD Sergeant Maurice Chisolm

On August 5, 2010, Sergeant Chisolm testified he was sitting at the desk at the 70th

Precinct on the evening of July 28, 2010. He received a call from Sergeant Zeng. As a result of that call, he telephoned the home of the Maternal Grandmother and Maternal Great Grandmother. The Maternal Great Grandmother picked up the telephone but Sergeant Chisolm was disconnected. He then telephoned again and spoke to the Maternal Grandmother. He told her that the police were at the apartment to execute the Warrant against Respondent Mother and ACS was there to remove the children. He told her the police needed access to the apartment and that she should let them in. Sergeant Chisolm testified that it was his understanding that the Maternal Grandmother did not allow the police or ACS caseworkers into the apartment and the children were not removed.

Testimony of Respondent Mother

On August 9 and 10, 2010, ACS called Respondent Mother, Debra W., to testify. The Court declared her to be an adverse witness. Respondent Mother invoked her Fifth Amendment privilege against self-incrimination. The Court ruled that she could invoke her Fifth Amendment privilege only to questions that could lead to a criminal prosecution. The Court stated that the assertion of privilege would most likely be limited to events after the filing of the court proceeding on July 23, 2010.

Respondent Mother stated that she could not recall if she had a conversation with the ACS Caseworker on July 21, 2010. She confirmed that the ACS Caseworker arranged transportation for her and the children to attend the Child Safety Conference on July 22, 2010, and she did not attend. She also confirmed that she spoke to the ACS Caseworker on July 22, 2010, and that he told her the outcome of the Child Safety Conference. Respondent Mother denied that he said that ACS would be requesting a remand of the children. She could not recall if the Caseworker told her ACS would be filing a child neglect case against her in Bronx County Family Court or that he provided the name of the Judge and Trial Part assigned to the case. Nor could she recall if the ACS Caseworker made an appointment to meet with her on July 23, 2010 at 5:00 P.M., at the Brooklyn Field Office, but confirmed she did not meet with him.

Respondent Mother stated she could not recall if she ever spoke to the ACS Caseworker before July 22, 2010. She admitted to telling an ACS Caseworker that she felt ACS was against her

since day one; that ACS was hindering her, not helping her. She stated that prior to July 23, 2010, her plan was to help her children without ACS assistance. The only help she wanted from ACS was money for carfare to go to all the places ACS required her to go. She said she did not want to engage in services, but she did.

Respondent Mother stated that her son, H.M., had been hospitalized since his birth in 2008. She testified that she took H.M. out of the hospital on a pass for an overnight visit in early July 2010. However, she claimed that she could not recall when she was required to return the child to the hospital or if the visit was to be for more than one overnight. She could not recall having a [*8]conversation with anyone from the hospital about the need to return H.M. to the hospital, or that they told her that if she did not return the child, the police would be called. She could not recall whether H.M. was with her on July 7, 2010. Respondent Mother stated that prior to July 6, 2010 she had only one overnight pass to take H.M. out of the hospital, but she could not recall when that was. She said that from October 2009 to July 6, 2010, she would go back and forth between New York and North Carolina. She could not recall how long she would stay in North Carolina on each visit or where she would stay.

Respondent Mother testified that she loved her mother but did not know her mother's whereabouts. She invoked her Fifth Amendment right and refused to answer questions as to the last time she saw the subject children, where her children were, or if they were with her brother in North Carolina. Respondent Mother said that she did not have contact information for her brother.

When asked where her children stayed when she was going back and forth, she revealed that they stayed with the Maternal Grandmother in North Carolina. She then stated that the Maternal Grandmother resided in the D. Apartments on V. Lane or Drive in Charlotte, North Carolina. This was the first and only time that Respondent Mother revealed any specific information as to any addresses or locations other than the Maternal Great Grandmother's address in Brooklyn. Respondent Mother responded to the majority of questions posed that she could not recall events that occurred in early July 2010, about one month ago. The Court found Respondent Mother's testimony to be evasive and incredible.

Following the close of testimony, the ACS Attorney, Counsel for Respondent Mother, and

the Children's Attorney submitted written summations.

Legal Analysis

Family Court Act § 156 [FN1] governs the contempt powers of the family court and provides, pursuant to the Judiciary Law, Article 19, that the family court has the power to punish for both criminal and civil contempt, either separately or combined (see Judiciary Law §§ 750 and 753). The statute " makes explicit that the court's power extends to any person properly before the court, rather than merely a formal party to the proceeding' " (Matter of Murray, 98 AD2d 93, 96 [1st Dept 1983] quoting the memorandum of the Office of Court Administration in support of the 1975 amendments of Family Court Act § 156 [NY Legis Ann, 1975, p.18]). Here, Petitioner ACS asks that Debra W., charged as Respondent Mother in the child neglect proceeding, and properly before this Court, be held in civil contempt for violation of the lawful mandates of the Court pursuant to Judiciary Law § 753 (A) (3). For reasons set forth below, this Court finds by clear and convincing evidence that Petitioner has sustained its burden of proof and Respondent Mother is guilty of civil contempt (see Rienzi v Rienzi, 23 AD3d 447, 449 [2d Dept2005];Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944 [2d Dept 2009]).The Court of Appeals in McCain v Dinkins (84 NY2d 216, 226 [1994]), delineatedthe four elements of civil contempt: 1) a lawful order of the court existed that expressed a clear, unequivocal mandate; 2) the charged party had actual knowledge of the existence and contents of the court's [*9]order, although it is not necessary that the order be served upon the party;

3) the order was disobeyed; and, 4) such disobedience was calculated to or actually did defeat, impair, impede, and prejudice the rights or remedies of another party to the litigation. Proof of willful disobedience is not an element of civil contempt since the purpose of a civil contempt is to protect the rights of another party to the litigation, and compensate the injured party "for the loss of or interference with the benefits of the mandate" (id.).

In the instant case, the Court finds that Petitioner ACS has established that the following lawful mandates were in effect: 1) the Oral Orders of Judge Ruiz issued to Respondent Mother on August 2, 2010, and the Oral Orders issued by this Court on August 3, 4, 5, 6, 9, and 10, 2010; 2) the Warrant of Arrest, execution stayed, issued by this Court on July 23, 2010, and 3) the Warrant of Arrest issued by this Court on July 26, 2010.

On July 23, 2010, the Court issued a warrant, execution stayed, and on July 26, it issued a warrant for the arrest of Respondent Mother and production of the children. The family court has the general power to issue a Warrant of Arrest "to secure or compel the attendance of an adult respondent . . . whose testimony or presence at a hearing or proceeding is deemed by the court to be necessary, and to admit to, fix or accept bail, or parole him pending the completion of the hearing or proceeding" (Family Court Act § 153). In addition, the family court has authority to issue a Warrant of Arrest pursuant to Family Court Act § 1037, which provides, in relevant part, the following:

"(a) The court may issue a warrant directing the parent, or other

person legally responsible for the child's care or with whom he is

residing to be brought before the court, when a petition is filed with

the court under this article and it appears that

( i ) the summons cannot be served; or

(ii) the summoned person has refused to obey the summons; or

(iii) the parent or other person legally responsible for the child's

care is likely to leave the jurisdiction; or

(iv) a summons, in the court's opinion, would be ineffectual; or

( v ) the safety of the child is endangered; or

(vi) the safety of a parent, person legally responsible for the child's

care or with whom he is residing, foster parent or temporary custodian

is endangered.

(b) When issuing a warrant under this section, this court may also direct that

the child be brought before the court."

On July 23, 2010, the neglect petitions were filed before this Court, and the

ACS Attorney and Caseworker appeared. The ACS Caseworker informed the Court that he had told Respondent Mother of the filing and that she should appear in court. Further, he stated that he did not know her whereabouts or that of the children. At the direction of the court, he [*10]contacted Respondent Mother. He did so and he reported that she continued to refuse to divulge the whereabouts of the children. Based on that representation, the Court issued a warrant, but stayed execution, giving her an opportunity to appear voluntarily on the next court date. On July 26, 2010, Respondent Mother again did not appear. ACS Caseworker reported that she had not attended the meeting he arranged with her and he did not know her location or that of the children. Therefore, based on the Court's concern for the safety of the children, as well as the ineffectiveness of a summons in this case, where Respondent Mother could not be located, the Court issued a warrant.

The Warrant of Arrest commanded any police/peace officer in the State of New York "forthwith to arrest Debra W., and bring said person before this Court to be dealt with according to law,"and provided further that, "in conjunction with the arrest of the parent(s) or person(s) legally responsible for the children's care, to bring before this Court the following child or children," listing the names and birth dates of the four children. Finally,the Oral Orders issued by the Courts on August 2, 3, 4, 5, 6, 9, and 10, 2010, directed Respondent Mother to inform ACS and the Court of the whereabouts of the subject children, and/or arrange for the children to be brought to Court or an ACS Field Office. Further, the Court ordered Respondent Mother to provide information as to the names, addresses and contact information as to friends or relatives who might lead to the location of the children. The Oral Orders of the Courts were authorized pursuant to the family court's exercise of exclusive, original jurisdiction in Article 10 proceedings for the protection of children (see Family Court Act § 1013 and § 1015-a.). Further, at each court appearance, the Court urged Respondent Mother to provide relevant and detailed information and informed her that she would be released when the children were produced. Accordingly, the Court finds by clear and convincing evidence that each of the Oral Orders issued by the Courts and the Warrants of Arrest were lawful mandates, and were clear, specific, and unequivocal, therefore meeting statutory and case law requirements (see Matter of Commr. of Social Serv. of Erie County v Honan, 67 AD2d 815 [4th Dept 1979]).

As to the second element of civil contempt, whether Respondent Mother had actual knowledge of the court's lawful mandates, Judge Ruiz and this Court issued the above Oral Orders directly to Respondent Mother on August 2, 3, 4, 5, 6, 9, and 10, 2010. With regard to the stayed Warrant of July 23, 2010, the Court does not find that ACS has proven through clear and convincing evidence that Respondent Mother had actual knowledge of the stayed Warrant.

However, the testimony of NYPD Sergeant Zeng established that Respondent Mother had actual knowledge of the existence and contents of the Warrant issued July 26, 2010. Sergeant Zeng testified that on July 28, 2010, he showed Respondent Mother the Warrant dated July 26, 2010, and she pointed to her name. Sergeant Zeng testified that he explained the contents of the Warrant to Respondent Mother and told her that he had to arrest her and ACS had to take the children. Moreover, Respondent Mother's loud, repeated calls during her arrest directing the Maternal Grandmother to "shut the door" to the apartment, and not to let the police into the apartment, exhibited her clear understanding of the mandates of the Warrant.

Accordingly, the Court finds by clear and convincing evidence that Respondent Mother had actual knowledge of the following mandates of the court: the Warrant issued July 26, 2010; and Oral Orders of the Courts issued to Respondent Mother on August 2, 3, 4, 5, 6, and 9, 2010, [*11]that directed her: a) to produce the subject children in court or at an ACS office and/or to arrange for the production of the children; and, b) to provide the Court and/or ACS with the location of the children, and/or the names and contact information for any and all persons who could provide information as to their location.

With regard to the third prong of the McCain v Dinkins test, the charged party's

disobedience of the court's lawful mandate, Respondent Mother has evinced a calculated design, desire and purpose to disobey the Court's Orders and the Warrant issued July 26, 2010. Respondent Mother refused personally to bring the children before the Court on July 26, 2010, and her actions on the night of her arrest, July 28, 2010, affirmatively prevented the police from bringing the children to Court and showed a clear resolve not to comply with the Court's mandates. Thereafter, at each of her court appearances, on August 2, 2010, before Judge Ruiz, and on August 3, 4, 5,6, 9 and 10, 2010, before this Court, Respondent Mother has continued her defiance of the lawful mandates of the Court.

The Court finds it incredible that Respondent Mother does not know the addresses, contact information or birth dates of any relatives or friends who can assist the Court in locating the children. The only telephone number and address that Respondent Mother claims that she knows is that of Maternal Grandmother/Maternal Great Grandmother. Respondent Mother was evasive and often non-responsive in her testimony. Further, her sudden recall in her testimony of August 10, 2010 of the address in North Carolina at which the Maternal Grandmother had lived up until recently, further substantiates the Court's finding that Respondent Mother has not been forthcoming in her responses to the Court's directives and therefore is not in compliance.

Counsel for Respondent Mother assert that she was motivated to comply with the Oral Orders of the Court and did provide the names of family members and their possible locations. Counsel stated further that Respondent Mother was precluded from providing telephone numbers of relatives because the numbers were listed on her cell phone, which she left at the Maternal Grandmother's/Maternal Great Grandmother's home, and has not been recovered. These arguments are illusory. Clearly, Respondent Mother has withheld important information which would facilitate locating the subject children, and her repeated responses that she does not recall such pivotal facts as the addresses, telephone numbers, and birth dates of close relatives, amounts to a direct refusal to obey the Court's Orders. Moreover, these acts of disobedience are sufficient to sustain a finding of civil contempt, regardless of motive (see Matter of Bonnie H. [Rose H.], 145 AD2d 830, 832 [3d Dept 1988], lv dismissed 74 NY2d 650 [1989] ["It is not necessary that the disobedience be deliberate; the mere act of disobedience, regardless of motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes, or prejudices the rights of a party] citing Yalkowsky v Yalkowsky, 93 AD2d 834, 835 [2d Dept 1983]).

In sum, Respondent Mother's responses to questions that the Court directed her to answer were evasive, non-responsive, and incomplete, demonstrating clear disobedience to the Court's Orders. "It is sufficient if, as here, the charged party is shown to have been actually aware of, and disobeyed a clear and unequivocal court directive"(James W.D. v Sandra C., 44 AD3d 423 [1st Dept 2007] citing Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]). Accordingly, the Court finds by clear and convincing evidence that Respondent Mother has disobeyed the lawful mandates of the Court.



Finally, the Court finds significant evidence of the fourth element of civil contempt that [*12]

Respondent Mother's disobedience was calculated to and actually has defeated, impaired, impeded, and prejudiced the rights and remedies of the Petitioner ACS in the prosecution of the child neglect proceeding, NN 19867-71/2010. Specifically, Respondent Mother's disobedience to the Court's Orders has delayed ACS's investigation and presentation of its case to the Court, and, more importantly, has prevented ACS and the Court from ensuring the safety of these children and providing the children with the services they need.Accordingly, the Court, having fully considered the testimony and exhibits in evidence, and

the written summaries submitted by counsel, finds by clear and convincing evidence that the record in this matter reflects contemptuous misconduct by the Respondent Mother in direct disregard for the court's orders. Pursuant to Judiciary § 753 (A) (3), the Court finds Debra W., Respondent Mother, guilty of Contempt of Court, in having disobeyed the Warrant of Arrest issued by the Court on July 26, 2010, and having disobeyed the Oral Orders issued by Judge Ruiz on August 2, 2010, and Oral Orders of this Court on August 3, 4, 5, 6, 9 and 10, 2010. Further, the Court finds that such disobedience of lawful court mandates by Debra W., Respondent Mother, was calculated to, and actually has impaired, defeated and/or prejudiced the rights and/or remedies of ACS as the Petitioner in the pending child neglect proceeding, NN 19867-71/2010 filed July 23, 2010. The Court finds Debra W., Respondent Mother, guilty of civil contemptof court, and the proved misconduct "consists of an omission to perform an act or duty, which is yet in the power of the offender to perform" requiring that she "shall be imprisoned only until [s]he has performed it" (Judiciary Law § 774 [1]).

Pursuant to the Court's Final Order with Warrant of Commitment, Debra W., Respondent Mother, is hereby incarcerated in the county jail of the City of New York in which she shall be found, and there to remain charged with civil contempt until the subject children are produced in Court or at an ACS office, or for a term of imprisonment of six months in the county jail of the City of New York, effective July 28, 2010, until January 27, 2011, whichever is shorter, and to be returned to the Bronx County Family Court, Part 7, on August 17, 2010,[FN2] for an opportunity to purge herself of her contempt by compliance with the aforementioned court orders, by clear and convincing evidence, by revealing the whereabouts of the subject children and/or arranging for their production. Bail is set at $50,000.00, and the bail bond is set at 10 percent of the bail amount or $5,000.00.

This constitutes the decision and order of the Court.

E N T E R:

__________________________________

CAROL R. SHERMAN, JUDGEFAMILY COURT BRONX COUNTY

DATED: BRONX, NEW YORK

August 13, 2010

[*13] Footnotes

Footnote 1: Family Court Act § 156 provides that a violation of a family court order is punishable as a contempt "unless a specific punishment or remedy for such violation is provided in this act or any other law." The court found no provision in the Family Court Act or any other law that provided a specific punishment or remedy for the violation alleged in this matter.

Footnote 2: On August 13, 2010, the day the court rendered its decision, the Maternal Grandmother appeared in Bronx County Family Court with the four children. The court released respondent mother and the children were taken into the care and custody of the ACS Commissioner pursuant to the court's remand issued July 26, 2010.