Matter of Gavin S. (Destiny Owen S.)

[*1] Matter of Gavin S. (Destiny Owen S.) 2016 NY Slip Op 51234(U) Decided on August 18, 2016 Family Court, Kings County O'Shea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2016
Family Court, Kings County

In the Matter of Gavin S., Child Under Eighteen Years of Age Alleged to be Neglected by

Destiny Owen S., Respondent.

NN-28867/15



Corporation Counsel, Michael Cordozo, by Christopher Vidiksis, Esq., Special Assistant Corporation Counsel, Esq., appeared for the Petitioner, 330 Jay Street, 12th Floor, Brooklyn, NY 11201 Telephone No. 718-802-2774.

Kylee Sunderlin, Esq., Brooklyn Defender Services, Family Defense Practice, appeared for Respondent Mother 180 Living Street, Suite 300, Brooklyn, NY 11201, Telephone No. 347-592-2543.

David Freed, Esq., Assigned Counsel panel, appeared as Attorney for the Child, 16 Court Street, Suite 2402 Brooklyn, NY 11241, Telephone No. 718-855-0070.
Ann E. O'Shea, J.

The Administration for Children's Services ("ACS" or "Petitioner") commenced this proceeding with a petition, filed under Article 10 of the Family Court Act ("FCA") on November 13, 2015, alleging that Respondent, Destiny S. ("Ms. S" or "Mother") suffers from a mental [*2]illness which impairs her ability to care for the subject child, Gavin S. (dob x/xx/15) ("Gavin"), and that, as a result, Gavin is a "neglected child" as that term is defined in FCA §1012(f).

Gavin was initially remanded without objection by Ms. S when the petition was filed on November 15, 2015. He was subsequently returned to her care by order dated November 30, 2015, and a number of preventive and supportive services were put in place. Ms. S was psychiatrically hospitalized on April 2, 2016. On April 4, 2016, while Ms. S was still in the hospital, ACS filed an order to show cause asking that the Court vacate the November 30, 2015, order returning Gavin to his mother's care and that the Court remand Gavin to the custody of the Commissioner under Family Court Act ("FCA") §1027. The Court granted ACS's plea for interim relief of an immediate remand of Gavin pending final determination of its order to show cause. Gavin was temporarily remanded and placed in nonkinship foster care on April 4, 2016.

Although the parties have referred to the present proceeding as Ms. S's application under FCA §1028 for the return of Gavin to her care, as a procedural matter, it is really a hearing on ACS's application under FCA §1027 for temporary removal of Gavin as the Court only granted ACS's application in its April 4, 2016, for interim relief. Whether it is categorized as a 1027 or 1028 application, the standards to be applied are essentially the same.

FCA §1027 provides that if, after a hearing, "the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child." FCA § 1028, provides that, upon the application of a parent for the return of his or her child who has been removed from his or her care, and following a 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 either case, the court must determine if the child's "life or health" would be at "imminent risk" of harm in the respondent's custody and, additionally, whether remaining in or returning to the home would be contrary to the child's best interests (FCA§1027(a)(I); FCA§1028(b); Nicholson v. Scoppetta, 3 NY3d 357, 377 [2004]).

"In order to justify a finding of imminent risk to life or health . . . an agency need not prove that the child has suffered actual injury. Rather, a court engages in a fact-intensive inquiry to determine whether the child's [physical or] emotional health is at risk" (Nicholson, 3 NY3d at 377). In reaching its determination, the "court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal; [i]t must balance [the risk to the child's life or health] against the harm removal might bring; and it must determine factually which course is in the child's best interests" (id. at 378); see also Matter of DeAndre S. (Latoya F. S.), 92 AD3d 888 [2d Dept. 2012]). The language and legislative history of the statute establish that "a blanket presumption favoring removal was never intended" (Nicholson, 3 NY3d at 378; see also Matter of Jesse J. v. Joann K., 64 AD3d 598, 599 [2d Dept 2009]). The Legislature placed "increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family" (Mark G. v Sabol, 93 NY2d 710, 719 [1999]; see also Nicholson, 3 NY3d at 374).

A mental illness that causes a parent to act in a way that presents an imminent risk to his or her child's life or health may support a removal of the child from the parent's care under FCA §1027, just as a finding of neglect under FCA §1012 may be predicated "upon proof that a child's physical, mental, or emotional condition was impaired or was placed in imminent danger of becoming impaired as a result of a parent's mental illness" (see, e.g., Matter of Soma H., 306 AD2d 531[ 2d Dept 2003]). However, just as "proof of mental illness alone will not support a [*3]finding of neglect" (Matter of Joseph A. [Fausat O.], 91 AD3d 638, 640, [2d Dept 2012]), neither will it support a removal of the child from the parent's care in the absence of evidence that the parent's illness creates an imminent risk to the child's life or health. As the Court of Appeals cautioned in Nicholson, "[t]he plain language of [FCA§1027] and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm." (3 NY3d at 378 [emphasis in original]). There must be proof of an identifiable, specific, serious and imminent risk to the life or health of the child (see Nicholson, 3 NY3d at 377 [the court must engage "in a fact-intensive inquiry" to determine whether the child's life or health is at risk]) caused by the parent's mental illness. In determining whether removal is necessary to avoid imminent risk to the child's life or health, the statute also requires the court to consider "whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, whether reasonable efforts were made . . . to prevent or eliminate the need for removal. . . ." (FCA§1027(b)(ii)). In sum, if the court determines that an imminent risk to the child's life or health exists, it "must weigh, in the factual setting before it, whether the . . . risk to the child can be mitigated by reasonable efforts to avoid removal, . . . balance that risk against the harm removal might bring, and . . . determine factually which course is in the child's best interests" (Nicholson, 3 NY3d at 378; see also Matter of Baby Boy D. (Adanna C.), 127 AD3d 1079 [2d Dept. 2015]).The Court in Nicholson also stressed that "imminent" means "near or impending, not merely possible" (3 NY3d at 369; see also Baby Boy D., 127 AD3d at 1080 ("imminent" risk must be shown to justify removal).

ACS contends that the fact that Ms. S was psychiatrically hospitalized three times in the space of five months and her reaction to two of those hospitalizations demonstrate that her mental illness poses an imminent risk to Gavin's life or health.

In November 2015, Ms. S was living with 11-month-old Gavin in a family shelter in Manhattan. She was engaged in individual therapy, "trauma-informed" group therapy, and medication management in Kings County Hospital's mental-health clinic ("Kings County"). Ms. S testified that, on or about November 15, 2015, her medications had recently been changed and she was having a bad reaction to the change. On that day, she went with Gavin to the lobby of the shelter seeking help from shelter staff. She was upset and crying. She explained that her medications had recently been changed and she needed to have them adjusted. She also told the staff that Gavin was crying and she was having difficulty calming him. She asked if Gavin could go into respite care while she addressed the issue of her medications. The current ACS Child Protective Specialist ("CPS") Caceres testified that some unidentified shelter staff person reportedly told the prior CPS caseworker, who told Mr. Caceres,[FN1] that Ms. S was crying, screaming, and "out of control," and that Gavin was not crying, although Ms. S said he was. Shelter staff called ACS and Emergency Medical Services ("EMS"). According to Ms. S, when EMS arrived one of the workers grabbed Gavin from her arms and handed him to a shelter security guard; when she reacted angrily and pushed and kicked the EMS worker, EMS put her [*4]in handcuffs and injected her with some sort of sedative. They transported her to Bellevue Hospital Center ("Bellevue"), where she was psychiatrically hospitalized for four days and then released. ACS effectuated an emergency removal of Gavin, and he was placed in foster care.

From the evidence presented, it is impossible to know whether the shelter staff over- reacted to Ms. S's very apparent distress or whether Ms. S over-reacted to EMS's seemingly heavy-handed efforts to help her.Under the circumstances, while her resistance to EMS's actions may have been ill-advised, it was not irrational or bizarre. Ms. S acted responsibly by seeking help in the first place when she was distressed and experiencing difficulty. She was understandably further upset when her child was forcibly removed from her arms. In any event, ACS presented no evidence that Gavin was physically injured in any way, or that his life or health was placed in imminent risk of harm as a result of Ms. S's crying, yelling, or pushing the EMS worker. It is likely that Gavin was distressed to watch his mother be handcuffed and taken away from him, but that was not Ms. S's doing.

Ms. S was released from the hospital after four days, and Gavin was returned to her care a few weeks later, with a number of supportive services, including a homemaker, Ms. James, who helped Ms. S with cleaning the home and caring for Gavin, and a Visiting Nurse who monitored Gavin's health and well-being. For reasons that were not explained, Ms. S's mental-health treatment was switched from Kings County, where she was receiving "trauma informed" therapy to Bellevue, which did not offer such therapy, which she had found to be beneficial.

A second hospitalization — but not a removal of Gavin — occurred on or about March 27, 2016. Ms. S's apartment had been robbed of two cell phones and $20, plus her medications were again "not sitting right with her." She again went to the lobby of the shelter with Gavin to complain about the robbery and to ask for help. CPS Caceres testified that shelter staff reported that Ms. S was acting "erratically" and got into a verbal argument with shelter personnel. Ms. S testified that she called EMS; Mr. Caceres testified that shelter staff reported that they called EMS. Whoever called, EMS came, assessed that Ms. S did not need to be hospitalized and left. Ms. S, still believing that her medications were causing problems, called her sister to come pick up Gavin, and took herself to the hospital (the evidence did not establish which hospital), where she remained for about two weeks. Ms. S informed Ms. James, who helped her to contact her sister, to remain calm, and to get Gavin's things together, and CPS Caceres that she was going to the hospital and when she was released. After her release, she collected Gavin from the home of her adoptive mother and sister and returned to the shelter, where she continued to care for Gavin with the assistance of Ms. James and the Visiting Nurse.

The third hospitalization, which resulted in Gavin being removed from Ms. S for the second time and which gave rise to the present FCA §1027 application by ACS, occurred on or about April 2, 2016. Ms. S testified that she had gone that day with Gavin to visit her biological mother, who was drinking, became angry when Ms. S started to leave with Gavin, and stabbed Ms. S in the arm with a knife. Ms. S left with Gavin, and went to Bellevue for medical care. She received stitches in her arm and proceeded to attempt to leave the hospital. For reasons that were not disclosed or explained, Bellevue security officers stopped her as she was on her way out the lobby door. When she physically resisted, kicking and spitting at a Bellevue Security Guard, she was put in handcuffs and transported to the psychiatric ward. Again, while physically resisting hospital security may have been poor strategy, under the circumstances, it was understandable. She called her sister to come pick up Gavin, but ACS effectuated an emergency [*5]removal and placed him in nonkinship foster care before Ms. S's sister arrived. Ms. S was involuntarily admitted to Bellevue for evaluation and treatment. She was treated with different medications and occasionally had to be restrained while in the hospital. Bellevue records indicate that Ms. S got into several verbal and physical altercations with Bellevue staff and other patients. They also reveal that she was heavily medicated. Ms. S testified that she did not recall any of the reported altercations. She was discharged on or about April 8, 2016.

Since her discharge, Ms. S returned to Kings County Hospital's mental-health clinic, where she receives individual therapy and resumed her trauma-informed group therapy once per week, and she meets with a psychiatrist once per month for medication management. Ms. S's present diagnosis is schizo-affective disorder, bipolar disease, and post-traumatic stress syndrome. She takes her medications as prescribed and consistently attends her individual and group therapy. She consistently visits with Gavin at least three times per week. Ms. S testified that the services that were put in place for her when Gavin was returned to her in November 2015 were very helpful, particularly the homemaking services provided by Ms. James. She stated that she would cooperate with and welcome such services if Gavin is returned to her. Her appreciation of and willingness to cooperate with services were also noted in the risk-assessment evaluation performed by Family Court Mental Health Services in November 2015 ("Risk Assessment"). She testified that her life changed with Gavin's birth and that she wants to be a great mother despite her mental illness.

CPS Caceres testified that he had visited Ms. S's home when Gavin was living with her and that the apartment was clean, Gavin had an appropriate crib, clean sheets, clean clothes, sufficient food, and necessary supplies. He further testified that Ms. S and Gavin were well bonded, that all of Gavin's needs were met, that he had no safety concerns for Gavin in Ms. S's care. He also testified that ACS's Progress Notes reflected that Ms. S understood Gavin's needs and vulnerabilities, was able to meet those needs and to protect Gavin from harm. Ms. James, who had extensive opportunity to observe Ms. S with Gavin, reported to Mr. Caceres that Ms. S took "great care of Gavin," that she was "proactive" in caring for him and in making family arrangements for his care when she needed help. Finally, Mr. Caceres testified that Gavin could be released back to Ms. S's care if she complied with preventive services, including homemaking, visiting nurse service, ACS supervision, and continued with her mental-health treatment, all of which Ms. S stated unequivocal she was willing to do.

ACS failed to provide any evidence that Ms. S's mental illness ever prevented her from properly caring for Gavin (see, e.g., In the Matter of Nialani T., 125 AD3d 672, 674 [2d Dept. 2015]) or that Gavin's life or health was ever placed in imminent risk of harm while he was in his mother's care. The fact that Ms. S was hospitalized three times in the space of approximately five months did not put the child's life or health in jeopardy. When she needed help, she sought it, which was the right and responsible thing to do. While her resistance to EMS in November and to Bellevue security in April may have been ill advised and poor strategy — as Ms. S acknowledged — under the circumstances of both incidents, it was understandable. And, more to the point, it did not pose a risk to Gavin's life or health.

The Risk Assessment Clinical Report of the Family Court Mental Health Services, which resulted from an evaluation of Ms. S on November 17, 2015, ordered by the Court, noted that,

"To her credit, Ms. S appears to have a good deal of insight regarding her psychiatric illness and her treatment needs. She has actively sought help at several points since [*6]Gavin was born, and she seems very open to services. Ms. S stated several times that she wants to be a good parent despite her mental illness. She has expressed a willingness to take parenting classes, to find a homemaker, and participate in any other services that are recommended."

As previously noted, a parent's mental illness, standing alone, is not a basis for a neglect finding (Matter of Joseph A., supra, 91 AD3d at 640). A fortiori, it does not justify removal of a child from his parent's care in the absence of evidence that the child's life or health is in imminent risk of harm as a result of that illness (cf. Nicholson, 3 NY3d at 375 (exposure of a child to domestic violence is not presumptively neglectful, so "a fortiori, [it] is not presumptively ground for removal, and in many instances removal may do more harm to the child than good"). Where no such imminent risk has been shown, a removed child must be returned to the parent (see , e.g., In the Matter of Jeremiah L., 45 AD3d 771 [2d Dept. 2007]; FCA§1028(a) ("court shall grant the application [for return of a child], unless it finds that the return presents an imminent risk to the child's life or health") [emphasis added]). ACS's speculative concern that Ms. S might have be hospitalized again for her mental illness cannot serve as a basis for a finding of "imminent risk" (see Baby Boy D., 127 AD3d at 1080 [speculation that the mother might not enforce an order of protection against the father could not support a finding of imminent risk to the child's life or health]), particularly when she has been consistent with all aspects of her mental health treatment and has cooperated with the services that were put in place for her and Gavin.

As ACS failed to establish that Gavin's life or health were ever placed in imminent risk as a result of Ms. S's mental illness, ACS's application under FCA§1027 must be denied, and Gavin must be returned to his mother. And, consistent with the legislature's emphasis on providing preventative services and the recommendations in the Imminent Risk Assessment report, ACS shall immediately assist Ms. S in finding appropriate temporary housing for herself and Gavin, provide Ms. S with homemaking services to assist her with the home and caring for Gavin, and make referrals for appropriate parenting skills programs and other services that would benefit her and Gavin. In addition, ACS shall make diligent efforts to assist Ms. S in obtaining supportive permanent housing for parents with mental illnesses, which can provide the services she needs to care for Gavin.

Conclusion

ACS's application for a continuing remand of the child is denied. Gavin shall be returned to his mother as soon as he is medically cleared, which shall be completed forthwith.

Dated: August 18, 2016

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Ann E. O'Shea, AJSC Footnotes

Footnote 1: Hearsay is admissible in FCA §§1027 and 1028 hearings (FCA §1046 ( c), although the weight to be given to such testimony — as with all evidence — is a matter for the fact finder (see, e.g., Sadek v. Wesley, 27 NY3d 982 [2016]; Caltabiano v. New York State Employees' Retirement System, 135 AD2d 113, 115 [3d Dept. 1988]).