Matter of Hannah B (Michelle C)

[*1] Matter of Hannah B (Michelle C) 2017 NY Slip Op 51918(U) Decided on November 29, 2017 Family Court, Kings County Deane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2017
Family Court, Kings County

In the Matter of Hannah B, a Child Under Eighteen Years of Age Alleged to be Neglected by Michelle C, Respondent.



NN-26788/17
Jacqueline B. Deane, J.

Procedural History and Factual Background

This Court held a contested emergency hearing pursuant to Family Court Act § 1028 after the Respondent mother, Ms. C, requested the return of her 9-year-old daughter, Hannah. The mother's application was supported by the Attorney for the Child ("AFC"). The hearing began on November 15th and concluded on the 28th.

The underlying neglect petition filed on September 28th involves the allegation that on or about September 27, 2017, the Respondent mother was highly intoxicated when she came to pick up the subject child from school and that during the resulting arrest, she was kicking and cursing at the arresting officer. The petition further alleges that on or about September 26, 2017, the Respondent mother dragged the subject child by the hair. At the hearing, the Administration for Children's Services ("ACS" or "Petitioner") introduced several exhibits and called three witnesses: Police Officer Hui, ACS Caseworker Ms. F, and the foster care case planner Ms. R.

Police Officer Hui testified that he responded to a radio run on the evening of September 27th where he observed the Respondent mother with a group of school safety officers, smelling strongly of alcohol, with watery eyes, and swaying. Another parent on the scene reported seeing the Respondent mother and Hannah arguing and Ms. C appearing to be about to strike the child. Ms. C was arrested for Endangering the Welfare of a Child and placed in handcuffs at which point she began kicking and screaming. An ambulance was called and the Respondent mother was placed inside. Officer Hui remained with the subject child, Hannah, who was crying and told him that her mother had not hit her that night but "she always hits me when she is drunk."

ACS Caseworker Ms. F was assigned the case after receiving reports from the Statewide [*2]Central Register ("SCR") regarding the events of September 27th which were admitted into evidence. Ms. F interviewed the subject child the next day in the foster home, testified that Hannah stated that her mother drinks two to three times week, either wine or rum. The subject child said that when her mother drinks, she becomes overly affectionate or hits her and had once hit her on the hand with a belt. Hannah attributed some of Ms. C's drinking to stress at work. That same day, Caseworker F also spoke to Ms. C who admitted to having alcohol issues. Ms. C explained to Ms. F that her drinking had gotten worse in the last several years due to Ms. C's lieutenant at work verbally abusing her and her inability to remedy the situation by filing complaints against him. Ms. C described that the last three years in particular as having been really difficult for her which has caused her to behave out of character. She admitted to hitting the subject child with her hand, but not with objects and that she had on occasion taken Hannah to school while under the influence of alcohol.

The Respondent mother attended a Child Safety Conference ("CSC") on September 29th and the caseworker testified that Ms. C did not appear intoxicated either that day or the day before in Ms. C and Hannah's home. At the conference, the Respondent mother informed ACS that she had enrolled in mental health services for anxiety and depression a few weeks before and that she had begun medication. Ms. C elaborated on the situation at work explaining that she dreaded going to work every day because of the lieutenant's aggressive behavior and that he had on occasion physically prevented her from leaving his office. She sought mental health treatment to help her deal with the situation, and to control her use of alcohol, since her complaints to the Equal Employment Opportunity ("EEO") office had been unsuccessful.

According to Ms. F, the Respondent mother's service plan includes her continuing in mental health therapy, a parenting skill class, and substance abuse treatment. By the time of this hearing, Ms. C had enrolled in and attended a parenting skills class a week before. She also found a substance abuse treatment program herself and enrolled in that program (Realization Center) soon after the CSC. Caseworker F stated that Ms. C appeared honest and forthcoming. She also has the support of a neighbor and her uncle in caring for her daughter.

Since being removed from her mother, Hannah has struggled immensely in foster care. Ms. F testified as follows. Hannah's school is not within walking distance of the foster home. Hannah, who is only 9 years old, has to take at least two trains and one bus to get to her school from her current foster care placement. Although Hannah had never taken public transportation alone before, her foster parent only accompanied her three times. The caseworker is working on getting bussing but the initial application was rejected by the Department of Education ("DOE"). In addition, Hannah's teachers and counselors have expressed concern regarding her school work, and have stated that she is not doing as well as she had been doing previously. Hannah's guidance counselor, Ms. M, described Hannah previously as a hyper, attention-seeking, and bright third-grader. She now notes that the subject child is often late to school and appears tired. Because there is no one to pick Hannah up, she is not able to attend her after-school program.

The agency case planner Ms. R testified about her interactions with Hannah in which she has repeatedly expressed her desire to go home and that she missed her after-school program, calling it "special." Case planner R also made calls to the after-school program to get the subject child back into the program, but was unable to do so because nobody was available to pick her up from the program. During her visits, Hannah expresses how she does not sleep well in her foster home. She wakes up a lot and it takes her a while before she can fall asleep. Hannah expressed that she was "not happy."

Ms. R noted that her supervisor and others have observed the Respondent mother and the subject child as having a great relationship. It was obvious to them that the subject child "misses her mom" and that the Respondent mother seemed very attentive to Hannah throughout visits. It was observed that the subject child was "all over her mother" at visits and kept telling her "I miss you." The Respondent mother appeared sad in response and was taking in what the subject child was telling her. The foster mother has also stated that the subject child loves her mother and the visits she has supervised are always positive.

Case planner R has also met with the Respondent mother and spoken to her on the phone and Ms. C did not appear under the influence any of those times. She described Ms. C as pleasant and always put-together. She keeps what Ms. R described as an appropriate and beautiful two-bedroom home. Ms. C told Ms. R that she was in counseling for alcohol and that "there are life challenges, but I am going to do what I need to for Hannah." She has expressed remorse and has admitted that what happened was her fault and that she feels badly for what Hannah is going through. Ms. C stated that she is willing to do anything to have her daughter returned to her.

The foster mother has two biological children, a fourteen-year-old son and a nine-year-old daughter, as well as a teen boy foster child. The foster mother took a few days off work to teach Hannah to go to school on the train and the bus. Ms. R testified that she personally was not comfortable with Hannah's current transportation plan but that Hannah did not complain.

Finally, Hannah's school therapist has stated to the case planner that "the system made a mistake" and that the subject child "was better off at home."

The Legal Aid Society social worker, Ms. H, who works with Hannah's attorney, testified extensively about Hannah's experience in foster care and the harm Hannah has been suffering. During her meeting with Hannah, the child stated that she was unhappy in foster care and feeling depressed and anxious, was not sleeping well, that she cries every night, misses her mom and her home, and needs her mom. Hannah also told Ms. H that she was supposed to be in a play at school but was told that she could not because she had to attend a doctor's appointment at the agency during that time. The subject child stated that no one helps her with her homework in her foster home. In addition, she stated that her bed does not fit its frame, so it moves at night, that there are boys in the same room as her, and that she spent two nights on the couch. Ms. H reported that the foster mother told the subject child to not tell people what happens in her home and also got very mad at her for doing so. Hannah said she was stressed because the foster mother was also "really mad at her" for having to bring Hannah to see her lawyer that morning. She stated that she missed her mother and wanted to put a picture by her bed to try to make herself feel better. Hannah told Ms. H that she was unable to focus at school. She also stated that her foster mother does not ask her about her homework and does not seem to care regarding school. Hannah also said that she was not eating enough in her foster home as there were different rules for the foster care children and biological children. Specifically, Hannah cannot get food herself and cannot have seconds. Hannah stated many times that she wants to return home to her mother.

The Respondent mother testified on her own behalf and the Court found her to be forthright and credible. Ms. C described the subject child as funny, outgoing, smart, energetic, and loving. She described spending time with Hannah going to the beach, park, and out to dinner. Ms. C attends parent-teacher conferences, shows, and Valentine's Day and Halloween parties at Hannah's school. Ms. C would look over Hannah's homework every night and help [*3]organize her book bag.

The Respondent mother has worked as an emergency medical technician ("EMT") for the fire department for the past 17 years. She detailed how her lieutenant has been sexually harassing her for three-and-a-half years. She testified that he locked her in a room and despite her yelling and screaming, her co-workers did not do anything because they were afraid. She filed 10 to 12 complaints with the EEO office and with Human Resources and the investigations were unfounded. She expressed that she started drinking to cover up her feelings and deal with her abuse by the lieutenant. The Respondent mother stated that the drinking helped her go to sleep and be less nervous but then she became dependent and started to not feel well. She stated that she needed this particular job placement because of the set hours of 8:00am to 4:00pm, which allowed her to take Hannah to and from school, as a single parent.

Ms. C testified that she unsuccessfully attempted to find alcohol treatment over the summer and so ultimately enrolled in general mental health therapy to address both her alcohol use and anxiety. She began attending therapy weekly at Advanced Psychotherapy on September 11th and sees a psychiatrist there monthly who prescribed her medication. After this case was filed, Ms. C located Realization Center online and began attending substance abuse counseling there soon after September 27, 2017. She saw an individual counselor one time per week and engaged in group therapy two times per week, which she found helpful. The Respondent mother was unable to keep attending Realization Center as of November 11th because she can no longer afford the co-pays required by her insurance.

The Respondent mother acknowledged on the stand that her drinking is an issue because, at times, she craves alcohol and cannot always limit the amount. She last had one glass of wine in October, but she knew she should not have. She located an Alcohol Anonymous meeting online on Sundays and last attended two weeks ago because she had visits with Hannah over the past two Sundays. Ms. C said she is regularly in touch with her sponsors from AA and finds their support helpful.

Ms. C testified that she used typical discipline methods with the subject child, such as taking away toys or television privileges. She admitted that she used physical force on the subject child one week before September 27, 2017, when Hannah broke her vintage shade she planned to sell on eBay. She charged at the subject child and pulled her hair. Ms. C acknowledged feeling terrible afterwards as Hannah was crying and scared while looking at her.

Ms. C detailed how before she started drinking, she would come home crying and talking to her co-workers on the phone regarding work. For months, she was up at night, where she would walk the halls. It made the subject child nervous. Soon afterwards, she started drinking. It made the subject child sad and the Respondent mother expressed her wish to have someone to take her, even for five minutes. She stated that she was aware that the subject child was watching her go down and that it was not okay. Since then, the Respondent mother had stopped drinking. She feels like she can take care of her and that she is getting there. She conveyed that she never meant for subject child to get hurt and the subject child was always taken care of during the weekends. She expressed that she does not think about taking a drink and has not. She stated that she wants the subject child home and wants to be a family again.

Ms. C has expressed concern about her daughter's well-being in foster care both because she is taking public transportation and her care in the foster home. The school has expressed concerns to her about Hannah's performance and physical appearance, stating that the subject child does not look well. During a recent parent-teacher conference, the Respondent mother met [*4]with two teachers and the Assistant Principal. The subject child's report card was filled with all 2s, which was below average, and which Hannah had never had before. The subject child's teacher stated that the child was struggling and disorganized. Hannah typically received 3s and 4s, partly because of an after-school program, where they would do homework and extra activities. Hannah had recently been accepted into a new program at the school which she won via a lottery and includes homework, sports, dance, art, and crafts. Hannah had not been able to start this new program because of the transportation issue in foster care. In addition, the Assistant Principal, Ms. Nohos, stated that she was present the night the child was removed and felt it could have been handled in a different manner and that she would be willing to testify in court.

Until the start of this hearing, the mother's visits with Hannah had been supervised at the agency or by the foster mother. Upon learning of the school transportation issue, the Court ordered that Ms. C be allowed to pick Hannah up from foster care and bring her to school and then back to the foster home at the end of the day. There were no concerns raised about Ms. C's sobriety during any of these dates. During the Thanksgiving break, the Court permitted Hannah a 4 day overnight visit with the Respondent mother at their home, supervised by the mother's uncle who agree to visit for that period. The caseworkers were in touch with the mother, uncle and child both during and after the visit and no concerns were raised. The subject child reportedly appeared very happy and said that it felt like old times. When the hearing resumed on November 27th, the mother submitted to an alcohol screen at the Court's request which was negative. The Court then allowed the mother to have 2 nights of unsupervised visits so that the child could attend school from home which again occurred with no reported concerns regarding any alcohol use by the mother. The Respondent mother voluntarily submitted to 4 random screens in the courthouse over the course of this hearing and tested negative for alcohol at all of them.

Legal Analysis

Family Court Act §1028 states:

Upon the application of the parent for the care of a child temporarily removed under this part the court shall hold a hearing to determine whether the child should be returned 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 Nicholson v Scopetta, 3 NY3d 357 [2004], the Court of Appeals recognized the real emotional harm that children often suffer when removed from their parents and required Family Courts, when applying FCA 1027 and 1028, to carefully balance that harm against the risk of return. See Nicholson 3 NY3d at 378-79. Pursuant to Nicholson, this 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. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim." Id.

The harm of removal in this case is especially pronounced and has several different components. First, there is the obvious emotional harm caused by the physical separation of mother and daughter who have an especially close bond given that they are a two-person family with no relatives nearby (the Respondent mother testified that Hannah does not have a relationship with her father and Ms. C's uncle lives in the Bronx). The agency caseworker and Legal Aid Society social worker both testified to the depth of their relationship and the degree to [*5]which Hannah has expressed missing her mother. Hannah describes difficulty sleeping and feelings of anxiety and sadness which she tried to soothe by keeping a picture of her mother by her bed.

Next, there is the educational harm. Hannah is a child who prided herself on her educational accomplishments and, prior to this case, was performing extremely well in school, likely due in large part to her mother's support and encouragement. Hannah's education has suffered in multiple respects since her removal. Instead of walking the 3 blocks to school from her home with her mother, Hannah has been forced to take public transportation for the first time at age 9 because her foster mother's work schedule does not allow her to accompany Hannah and the agency has been unable to arrange bussing. As a result, Hannah travels alone to and from school close to 1 hour taking 2 or 3 trains and a bus, which she told Ms. H she is not comfortable doing. The result of this commute is that she is often late to school and very tired, to the extent that she once fell asleep on the subway and missed her stop. Her school work has suffered according to her teachers and her recent report card showed a decline in grades from mostly 4s to mostly 2s, a grade she had never received before. Hannah described to Ms. H that she relied on having her mom to help her stay on track with her school work, keep her focused and providing assistance when needed. Instead, her foster mother does not show an interest in her homework and is not available for any help. Finally, because Hannah is travelling to and from school alone, she has not been allowed to attend the after-school program she was selected for and which is really important to her because the late dismissal time requires someone to pick her up.

Additionally, Hannah's foster mother has exacerbated the harm. The testimony established that initially Hannah was sleeping on a couch and then she was moved to a bedroom shared with one or two teenage boys. Hannah has expressed discomfort with both of these situations. Hannah describes her foster mother as treating the foster children differently from her biological children, limiting their access to food in the home and the quantity they can eat. Of greatest concern is the emotional stress the foster mother has contributed by criticizing Hannah for statements she has made to the caseworker and her lawyer about the conditions in the home. The foster mother has threatened Hannah not to repeat what goes on in the home and has complained about having to bring her to see her lawyer for a 2nd time.

In their request for continued foster care, ACS has focused on the Respondent's early stage in her recovery process and the fact that she has not been in alcohol treatment for the past two weeks due to financial issues. Specifically, ACS points to initial statements Ms. C made early on in her alcohol treatment program that she "wasn't fit for the program". Full acceptance of one's addiction and achieving recovery is a process that takes time and does not always proceed in a perfect line. Ms. C has taken significant steps along that journey in several ways. First, the Court finds that Ms. C is credible in her acknowledgment that she has an alcohol issue which has interfered with her life and most importantly negatively affected Hannah both prior to the filing of this case and in the harm Hannah has suffered since removal. The Court believes Ms. C truly feels both responsible and remorseful for that harm. Second, Ms. C sought treatment even before the filing of this case and has engaged successfully since, enrolling in a specific substance abuse program which she regularly attended for over one month. Although she has not attended that program since November 11th, she has located an Alcoholics Anonymous group that meets on Sundays, the day she is most tempted to drink. Most significantly, there is no indication that Ms. C has had any alcohol in the past month given her sober appearance at visits and in court and her 4 negative tests for alcohol conducted in court from November 15th to the [*6]28th. Ms. C testified that the medication she has been taking since the start of the case has helped her manage her anxiety and reduced her reliance on alcohol. While the Court believes that Ms. C would benefit from the support of a structured alcohol treatment program to support her sobriety long-term, the Court is confident that Ms. C would comply with an order to re-enter the program now that it is within her financial means after the intervention of the Court's in house treatment facilitators.

Even if continued removal would somehow enhance or expedite Ms. C's path to recovery that is not the focus of this Court. The sole legal obligation of the Family Court in child protective proceedings is the physical and emotional well-being of the child, in this case 9-year-old Hannah. In its quest to remedy the mother's addiction, the Court fears that the agency has lost sight of this goal. Until this Court intervened with temporary orders at the start of this hearing, Hannah was traveling to school in a way that negatively affected her emotionally and educationally on a daily basis and put her at physical risk. She experienced emotional harm on a nightly basis in the foster home both due to missing her mother and being treated as a second-class citizen in the foster home where she had no support for her school work and her physical health was impacted because of her inability to sleep at night. Perhaps the ultimate comment on the agency's misplaced priorities was encapsulated by the plan to have Hannah miss a school Thanksgiving play she had prepared for and was to perform in because the foster mother had missed a prior doctor's appointment and the agency rescheduled for that day. This system must not revolve around the dictates of agency administrative procedures or the convenience of foster parents at the expense of a child's well-being. Fortuitously, the Legal Aid Society social worker happened to testify only 2 days before this plan was to occur about Hannah being upset about missing her play, and the Court was again able to intervene with an order that the appointment be rescheduled so Hannah could attend the play and her mother could be in the audience. Ironically, the night the ORT was called in, Ms. C had missed another play of Hannah's allegedly because of her intoxication and yet the agency in essence was re-creating the same harm it had sought to remedy by filing this case.

In reaching this decision, the Court is accepting all of the allegations in the petition as true, given the Respondent mother's assertion of her 5th amendment rights on cross-examination related to the night of September 27th. While the Court in no way condones the Respondent mother's drinking to the point of intoxication in Hannah's presence or the use of any excessive corporal punishment, the Court finds that the harm Hannah was likely suffering while at home with her mother is far outweighed by the emotional, physical, and educational harm Hannah has been suffering in foster care. Even during the height of her alcohol use, Ms. C was taking Hannah to and from school every day on time and helping her succeed academically. Hannah was always well-fed and cared for and the school never raised any concerns about her physical appearance in any way. Ms. C was holding down a job that allowed her to provide for her daughter as a single parent despite a very difficult and stressful circumstance at work. Clearly, there was some emotional impact on Hannah from seeing her mother so unhappy and unable to control her drinking. The Court also believes there was some harmful comments made by her mother when intoxicated as well as some physical punishment. However, the evidence at this hearing did not establish any clear pattern of excessive corporeal punishment. Furthermore, the Court finds that orders can be put in place that would eliminate or mitigate any imminent risk which would exist if Hannah is returned given Ms. C's current progress towards recovery and her compliance with court orders to date.

Finally, as Hannah is 9 years old, she is fully capable of reporting any concerns after being returned home to her attorney or the caseworkers who will be supervising the home, just as she has during the course of the investigation, which further reduces any concerns of risk.

Thus, for the reasons above, the Respondent mother's application for the return of her daughter pursuant to Family Court Act § 1028 is granted. The Court hereby orders that the subject child be released back to the legal care and custody of her mother under the following conditions. The Respondent mother is:

1) to cooperate with ACS supervision including at least weekly announced or unannounced home visits;2) not to use alcohol or be under the influence of alcohol in the presence of the subject child;3) to comply with a temporary order of protection not to use any corporal punishment on the subject child;4) not to discuss the court case or any statements the child has made or may make to her lawyer or caseworkers;5) to attend a substance abuse treatment program, which can include Alcoholics Anonymous, as recommended;6) to submit to random screens at least once per week;7) to continue to comply with mental health counseling services, as recommended;8) to comply with preventive services; and9) to bring Hannah to any recommended counseling.

If ACS chooses to exercise the automatic 24-hour stay of this ruling pursuant to the FCA, the Respondent mother is permitted to pick up the child from her after-school program today and bring her to the foster home while Ms. C attends her program. The Respondent may then pick up Hannah after the program and bring her home over-night, returning Hannah to school in the morning all on the condition that Ms. C not be under the influence of alcohol at any point during that time.

Dated: November 29, 2017

The Hon. Jacqueline B. Deane