Matter of Divayah D. (Shawanna T.)

[*1] Matter of Divayah D. (Shawanna T.) 2018 NY Slip Op 51183(U) Decided on August 6, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2018
Family Court, Kings County

In the Matter of Divayah D. (DOB xx/xx/12), A Child under Eighteen Years of Age Alleged to be Neglected by Shawanna T., Respondent.



NN-XXXXX-18



Natalia Roban, Esq.

Family Court Legal Services

Administration for Children's Services

330 Jay Street, 22nd Fl.

Brooklyn, New York 11201

Elizabeth Ling, Esq.

Brooklyn Defender Services

Family Defense Practice

195 Montague Street, 5th Fl.

Brooklyn, New York 11201

Katherine Sexton, Esq.

Legal Aid Society

Juvenile Rights Practice

111 Livingston Street, 8th Fl.

Brooklyn, New York 11201
Jacqueline B. Deane, J.

Procedural and Factual Background

This Court held a hearing pursuant to Family Court Act § 1028 after the Respondent mother requested the return of her daughter, the subject child, Divayah, who is 5 years old, to her from the care of the maternal grandmother where she has been placed since the Administration of Children Services ("ACS" or "Petitioner") removed Divayah on July 12, 2018.

The Court heard the testimony of the sole witness called by ACS, the Caseworker Ms. Ifill, as well as that of the Respondent mother, who testified on her own behalf. The Court requested the opportunity to briefly question the maternal grandmother, which all parties consented to, and has also carefully reviewed the exhibits in evidence. The caseworker's testimony, while not incredible, was disjointed and confusing at times. The Respondent mother's testimony was largely consistent with the caseworker's but much more detailed and filled in many gaps in the caseworker's narrative. Taken together the following facts emerge as to what occurred that led to the filing of this petition.

On July 11th, the Respondent mother, Ms. T, brought her daughter, Divayah, with her to visit a friend named Lincoln D in Queens whom she had known for 6 years and never had any issue with previously. They went to a park near his house where Divayah played and then returned to Mr. D's house as he said he would cook them a meal. After arriving at his home, Divayah was jumping around and making noise which Mr. D complained about. At that point, Ms. T told Mr. D that they needed to leave anyway to get back to the shelter in time for curfew. As she and Divayah walked outside, Mr. D grabbed her by the neck and pushed her. She broke away from him and ran with Divayah to call the police because she felt they were in danger. Ms. T's phone was dead so she stopped a passerby on a bike and asked to use his phone. The police and EMS responded and Mr. D was arrested. Divayah asked to get a band-aid for an old "boo boo" from the ambulance and the NYPD suggested that the Respondent mother go to the hospital with her daughter to have her neck checked.

When they arrived at Jamaica Hospital that evening, Divayah was taken to the pediatric ER to be examined and, while Ms. T was waiting to be seen, she asked if they could giver her a prescription for her medication because she was feeling anxious and overwhelmed after the altercation. Since her own phone was still dead, Ms. T was adamant in her testimony that she gave the nurse a piece of paper with the phone numbers for her mother and aunt and repeatedly asked to have them called to come pick up Divayah. It appears this information may have been lost because the ORT called in by the doctor at the hospital early the next morning asked ACS to come get the child as there were no resources for her. See ACS Exhibit 1 in evidence. The report to the state central registry ("SCR") alleged that the child sustained a scratch during the fight when the man the mother fought with pushed her down. Although Caseworker Ifill testified that the doctor noted a 1 centimeter scratch, she did not observe any injury on the child when she responded to the hospital later in the day of July 12th. When Ms. Ifill spoke to Divayah, she did not say she felt scared or unsafe around her mother in any way. The caseworker arranged for Divayah to be placed with her grandmother that afternoon.

ACS did not admit any records from Jamaica Hospital nor offer any testimony from a witness who treated Ms. T there and the hearsay testimony from the caseworker on this topic [*2]was unclear.[FN1] As a result, it is difficult to discern exactly why the mother was kept overnight. The caseworker said she was told that the mother had an episode of "hypomania" and was sedated. The evidence shows that Ms. T is very open about her mental health condition so it is likely she communicated her diagnosis at the hospital when she asked for her prescribed medication. Therefore, it appears that some combination of this and the mother's statements that she was feeling anxious and overwhelmed, as well as possibly her behavior at the hospital led to her having a mental health evaluation and being admitted overnight. Whatever the reason, Ms. T was discharged the very next day and simply told to follow up with her therapist after being given new prescriptions for her medications, Haldol, Risperadol, and Cogentin. Ms. T testified that she had these filled, which the caseworker confirmed, and said she has been taking the medications daily since her release.

With regard to the mother's prior mental health history, Ms. T stated that she was diagnosed as bipolar and schizophrenic in 2016. The maternal grandmother told the caseworker that her daughter's first "breakdown" was 3 to 4 years ago and she believed it was triggered by the death of the Respondent's father. The grandmother described her daughter's behavior during episodes of mental health deterioration as identifiable because the Respondent mother would engage in compulsive behaviors such as washing all the clothes and even the pillows in the house saying "she was washing demons out" and would walk around the house playing gospel music. Significantly, the grandmother said she has never seen her daughter get violent at these times and has never believed that she was dangerous to Divayah. Ms. T described that the sound of running water calms her during these time as does the gospel music and bible reading. Since the mother's initial hospitalization at Kings County (which was actually two separate periods divided by only a few days because the mother was not stable when initially released), she had been hospitalized two other times, once at Kings County and once at Coney Island Hospital, because she did not take her medication consistently. The maternal grandmother cared for Divayah during each of these hospitalizations and has told her daughter that anytime she is getting sick, she could call her.

Ms. T testified that she stopped taking her medication 1 to 2 months before the July 11th incident with Mr. D because she felt everything was going very well in her life - Divayah "was in school, the shelter [they] were staying in was supportive, and [her] mother was there for [her]." Ms. T said it was "clumsy" of her to stop taking her medication, and that in the future she [*3]would not stop without calling her psychiatrist or going back to the emergency room. She further testified that her mother is always the first person she calls if she needs help with Divayah and that in this instance she called the police because she felt they were both in danger from Mr. D.

Ms. T testified that, with the shelter's help, she enrolled in therapy at New York Psychotherapy in April or May of this year but there was a long waitlist. After two intake appointments, she began seeing her therapist weekly beginning June 20th. She was getting her medication from the last emergency room visit she had at Coney Island Hospital but has been trying to obtain a psychiatric evaluation at her current treatment provider. Unfortunately, the psychiatrist has cancelled on the three appointments she has been scheduled for, including the last appointment on July 25th. Her appointment is now rescheduled for September 12th. See Respondent mother's Exhibit I in evidence. Ms. T testified that she "loves" going to her therapist because she "helps [her] and doesn't make [her] feel like [she has] anything wrong with [her]."

The Respondent mother lives with the subject child in a two-bedroom shelter apartment on Halsey Street. They have lived there since January 2, 2018. She has two case workers there whom she meets with every 1 to 2 weeks. Ms. T disclosed her mental health diagnoses to them and they helped her find her a therapist, pursue permanent housing, and regularly check on her and her daughter. Caseworker X visited the mother's home and found it to be adequately furnished with enough food for the family. The respondent mother's bedroom had two twin beds because Divayah likes sleeping in the room with her mother. The shelter case worker told Ms. X that the Respondent mother "always comes in to the office and speaks with her concerning her day", ACS Exhibit 2 in evidence p. 3, that she keeps curfew and that the shelter has no issues with her.

ACS did not hold a Child safety conference until July 18th which was after the petition was filed and the subject child was already removed. Ms. T attended the conference and said she would comply with any services to have her daughter home. Despite this, ACS had not made any referrals for the services they recommended including parenting skills and therapy for the subject child even by the time this hearing began on July 30th. The Respondent mother signed a release immediately upon being asked, which enabled the caseworker to verify that Ms. T attends therapy weekly with only one missed appointment.

Ms. T and Divayah's visits have been supervised by the maternal grandmother and are reported to be going well, with Ms. T visiting her daughter almost every day. When the caseworker observes these visits, Divayah appears comfortable with her mother and there are no concerns. Ms. T testified that she sees the subject child daily at 8:00 am before she goes to camp, and then after Divayah returns home at 4:30 pm until 8:00 pm or so when she has to leave to return to the shelter by curfew. Because of this positive report, the Court granted the Respondent two hours daily of unsupervised time with her daughter which was expanded to four hours over this past weekend. Divayah reportedly tells her mother that she doesn't want her to leave each night as they had never been apart before in her life. Ms. T became emotional on the witness stand as she stated that she feels miserable without her daughter as "a part of [her] is missing.

Findings and Decision

The Family Court Act and case law make clear that the mere fact a parent has a mental health diagnosis, even a serious one, does not mean that they cannot safely and adequately care for their child. The definition of neglect in Article 10 does not include mental illness as an enumerated condition which constitutes per se neglect. Therefore, the parent's mental health condition must result in conduct which constitutes a "failure to exercise a minimum degree of [*4]care" that places the child in "imminent danger" of their physical, mental or emotional condition becoming impaired. FCA § 1012(f)(i). "It has long been held that a psychiatric diagnosis or prior psychiatric hospitalization, standing alone, is insufficient to establish neglect per se." In re Xavier G., 19 Misc 3d 1113(A) [Fam Ct 2008]. See also Matter of Moises D., 128 AD2d 775, 778 [2d Dept 1987] ("past deficiencies and psychiatric hospitalizations do not, by themselves, establish neglect or unfitness"). Rather, "the evidence must establish a causal connection between the parent's condition, and actual or potential harm to the children." In re Nialani T., 125 AD3d 672 [2d Dept 2015] (quoting In re Alexis S.G., 107 AD3d 799 [2d Dept 2013]). The Second Department, in In re Joseph A., Jr., reversed a finding of neglect due to the lack of that causal connection, finding that "there was no evidence that the mother's mental illness or delusional beliefs placed the children in imminent danger." 91 AD3d 638, 640 [2d Dept 2012]. While these cases discuss the appropriateness of a finding of neglect after a fact-finding hearing, the standard which ACS must meet to continue the removal of a child from her parent at a 1028 hearing, namely "imminent risk," is an even higher. It is notable that, at this hearing, there was no evidence of any actual harm to the child Divayah, even during the time her mother was off medication and her mental health was deteriorating. The fact that the mother was randomly assaulted by someone she had considered a friend cannot be blamed on the mother and there was no testimony that Divayah suffered emotional harm from her presence during the conflict.

The Court of Appeals in Nicholson noted that "imminent" means "near or impending, not merely possible." Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]. The Court believes that its role is not to simply hypothesize all of the risks that might occur, but rather to scrutinize the evidence and assess the likelihood that a known risk will cause actual or imminent harm to a child. An evidence-based inquiry is critical given the substantial right of parents, including those with mental health conditions, to raise their own children. See Matter of Elizabeth C., 156 AD3d 193 [2d Dept 2017] ("Our analysis proceeds from the fundamental principle that, with limited exceptions,"[a] parent has a 'right' to rear [his or her] child, and the child has a 'right' to be reared by [his or her] parent.") (citing Bennett v Jeffreys, 40 NY2d 543 [1976]); see also Santosky v Kramer, 455 US 745 [1982].

In this case, ACS has attempted to establish imminent risk simply by repeating the mental health diagnoses the mother herself reported and the number of hospitalizations she acknowledged having since that diagnosis. However, the Court cannot assume that every parent with bi-polar disorder and/or schizophrenia is a risk to their child, especially without expert testimony, since illnesses manifest somewhat differently in each individual. Even the fact that someone is hospitalized cannot be presumed to mean their child was at risk at that time as the parent could enter the hospital to help them stabilize BEFORE any risk occurs, which seems to have been the case here. As long as the parent has sufficient family support or makes adequate arrangements for the child when they enter the hospital, the child is protected from harm. It is notable to this Court that given the statistics as to the numbers of individuals who suffer from mental illness[FN2] , here in Brooklyn Family Court it is almost entirely indigent parents of color who [*5]have neglect cases brought against them for this reason. Given that these illnesses cut across race and class lines, it seems likely that the lack of adequate community-based low cost mental health treatment and the resultant overuse of large public hospitals for this treatment leads to greater and at times unnecessary involvement by ACS in these families lives. In middle and upper class families, these same mental illnesses are managed in the privacy of their own homes with family members caring for the children involved and quality mental health practitioners treating the parent without government involvement. These families have a substantially lower likelihood of being exposed to the public governmental agencies that are most likely to call the SCR or ACS.

Here, it is notable that there is no evidence that Divayah was harmed or even placed at risk of harm on any of the prior occasions that Ms. T's mental health deteriorated leading to her hospitalization. Four out of five of these occasions occurred when the maternal grandmother had concerns due to her daughter's excessive playing of gospel music, reading the bible and washing everything in the house including pillows—none of which create a risk of harm. When asked by the Court, the grandmother was definitive that at no time did Ms. T ever become violent or place her daughter in harm's way. There is no evidence that the mother's mental health condition impacted her ability to manage day-to-day life and care for her 5-year-old daughter. Specifically, Ms. T ensured Divayah was enrolled in school, an after-school program and day camp, and brought her to the pediatrician regularly, and she is pursuing permanent housing through her shelter caseworkers and maintaining a suitable home for herself and her daughter. See ACS's Exhibit 2. In fact, Divayah earned a certificate for perfect attendance at school in May and her overall attendance for the school year was 90%. See Respondent mother's Exhibits II & III in evidence. Importantly, Ms. T's mother was present in court every day of this hearing and has demonstrated complete support for her daughter and granddaughter.

Finally, as required by the Court of Appeals in Nicholson, this Court must balance the risk of harm from removal against the risk of harm from remaining in the care of a parent, and determine whether orders can be made to mitigate risk and eliminate the need for removal, as well as whether the best interests of the child require the child remaining out of the home. The Respondent mother impressed the Court as someone who is very conscientious about following rules such as her shelter curfew, keeping track of information such as appointment dates, and knowing the importance of asking for help when its needed such as calling 911 on the night of July 11th. This leads the Court to find that Ms. T will be equally conscientious in following court orders.

Currently, the Respondent mother is living in a family shelter with regular curfew checks and an in-house caseworker whom Ms. T testified she can meet with on a weekly basis. Additionally, Ms. T has enrolled a Divayah in summer camp that is right across the street from the grandmother's home. If Divayah is released to her mother, it will also allow preventive services ("PPRS") to be put in place in her home, which Ms. T has not yet had the advantage of. The Court credits that Ms. T is extremely committed to complying with any orders that Divayah's release is contingent upon and has learned a lesson about not stopping her medication. The regular contact Divayah will have with her camp/school teachers, shelter staff, child protective caseworkers, and most importantly, her grandmother, who has shown herself to be a reliable reporter of her daughter's condition, will provide all the additional insurance this Court [*6]needs to return Divayah home.

In fact, the Court finds that ACS did not use reasonable efforts to avoid the need for removal at the outset of this case as required by FCA § 1027(b)(ii, iv) and 1028(b, d). Upon the mother's release from the hospital after only one night, Divayah could have been promptly returned to her had there been adequate and efficient casework employed in investigating this ORT. On the contrary, the key people who could have provided important information about the care of the child by her mother, such as the pediatrician and long-time camp/after-school provider were not spoken to. Although Ms. T was open about her diagnosis and fully cooperative with ACS from the beginning, a release was not promptly requested and when received not used to obtain her psychiatric records, and she was not referred to any services until an order from this Court. Ms. T does not hide her mental health diagnosis and is open to receiving help when she needs it with the full support of her mother. A parent who needs help and appropriately seeks it while ensuring their child is safe at all times should not be punished by the child protective system as this creates as a disincentive to the parent reaching out for assistance in the future. The emotional pain and harm that removal causes both the child and their parent is too great to allow it to happen unnecessarily based on slow, incomplete and ultimately inadequate casework such as what occurred here.[FN3] This Court ordered the caseworker to speak to all the relevant sources of information and provide a detailed written report to the Court on the final day of this hearing and the report provided supports the lack of need for continued removal. See ACS Exhibit 2 in evidence.

As a result, the Court finds that there is no sufficient proof of imminent risk that cannot be ameliorated by orders of this Court as required by FCA § 1028 and Nicholson. Specifically, the Court finds that the following orders would ameliorate any risk of harm as well eliminating the harm that is being done by the continued removal of Divayah from her mother's care.

Therefore, the subject child is released to Ms. T with ACS supervision and upon the following additional conditions:

(1) continued compliance with mental health treatment as recommended by her therapist(2) continued compliance with current medication unless changed by a treating doctor(3) cooperate with a psychiatric evaluation;(4) schedule weekly meetings with shelter case manager;(5) compliance with all shelter rules and regulations;(6) continue the subject child's enrollment in summer camp, school and after-school(7) comply with in-home preventive services;(8) inform all treatment providers, shelter staff and day care providers of contact information to reach the maternal grandmother in the event of concerns that her mental health is deteriorating;(9) visit the home of the maternal grandmother at least 3 times each week with Divayah;(10) ACS is to assist the Respondent mother with looking for a job.

DATED: August 6, 2018

Hon. Jacqueline B. Deane Footnotes

Footnote 1: ACS also did not introduce any records from any of the mother's prior psychiatric hospitalizations. Therefore, all of the evidence related to Ms. T's mental health history comes from the testimony of the mother and grandmother. This lack of information from ACS is troubling given that the mother was fully cooperative and signed a release for records as soon as she was asked. Therefore, ACS could have attempted to obtain at least some of these records on an expedited basis which may have either negated the need for this hearing or, at a minimum, enhanced the quality of information on which this Court must base its decision at this hearing. Ultimately, it is ACS's burden to obtain information that can be relied upon to establish imminent risk to continue the removal of a child under FCA 1028. Instead, ACS here chose to seek continued removal by raising the specter of risk by merely citing the mother's mental health diagnosis and the number of hospitalizations she had.

Footnote 2: "Nearly one in five U.S. adults lives with a mental illness (44.7 million in 2016) [and] an estimated 10.4 million adults aged 18 or older in the United States with SMI [serious mental illness]. This number [of adults with a serious mental illness] represented 4.2% of all U.S. adults." Mental Illness, National Institute of Mental Health, https://www.nimh.nih.gov/health/statistics/mental-illness.shtml, last accessed July 27, 2018.

Footnote 3: "Researchers have found that the physical placement into a foster home, as well as any subsequent placement changes, have been shown to negatively impact a child's ability to form healthy attachments." Vivek S. Sankaran & Church, "Easy Come Easy Go": The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U.PA.J.L. & Soc. Change 3, p. 211 (2016). "Out-of-home placement is typically associated with numerous disruptions in attachment relationships. These losses and lack of permanence undermine a child's attempt to form a secure attachment with a primary caretaker The more changes in caregivers young children in foster care experience, the more likely they are to exhibit oppositional behavior, crying, and clinging (Glean, Gilmore & Dowler, 1985) Disruptions in attachment relationships can lead to Reactive Attachment Disorder of Infancy or Childhood (American Psychiatric Association, 1994), a disorder in which the child exhibits severe disturbances in relationships with caregivers." Troutman, B. (2011). The effects of foster care placement on young children's mental health: Risks and opportunities. unpublished manuscript.