Matter of Mia H. (Shana H.)

[*1] Matter of Mia H. (Shana H.) 2020 NY Slip Op 50123(U) Decided on January 23, 2020 Family Court, Bronx County Taylor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2020
Family Court, Bronx County

In the Matter of Mia H. MAKAYA H. LALAH H. Children Under the Age of Eighteen Years Alleged to be Neglected by Shana H., Respondent.



NN-XXXXX-XX/19



Richard Camilleri, Esq., for the petitioner

Jessica Guilbeault, Esq., for the petitioner

Miriam Mack, Esq., assigned counsel for the respondent mother

Aleza Ross, Esq., assigned guardian ad litem for the respondent mother

Hayley Pine, Esq., attorney for the children
Gilbert A. Taylor, J.

NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

TAYLOR, G., F.C.J.:

On June 24, 2019, counsel for the respondent mother Ms. Shana H. (hereinafter, "Ms. H." or "Respondent") requested a hearing pursuant to Section 1028 of the Family Court Act (hereinafter "FCA"). A 1028 hearing was held, in conjunction with a contested permanency [*2]hearing, and decision was reserved.

Procedural History/Factual Findings:

On March 15, 2019, the Commissioner of the Administration for Children's Services (hereinafter, "ACS") filed a petition alleging that the Respondent neglected the subject children Mia H. (DOB 9/3/2013), Makaya H. (DOB 9/8/2014) and Lalah H. (DOB 8/10/2016) pursuant to Section 1012 (f)(i)(b) of the Family Court Act (hereinafter "FCA") in that:

The respondent mother failed to provide the children with proper supervision or guardianship, in that:

On or about March 8, 2019, according to staff members of FDNY EMS, they received a request for a wellness check at the respondent mother's home. According to EMS staff the respondent mother was found incoherent in the home. According to EMS the mother has selective mutism. The respondent mother could not or would not speak. Furthermore, EMS staff reported that the home was in deplorable conditions. There were roaches, expired food, garbage everywhere, and no food in the cupboards. Additionally, the children were found eating candy on the floor. According to EMS staff, the children appeared to be malnourished. Thereafter, EMS staff the respondent mother and children were escorted to Lincoln Hospital for treatment.

On or about March 8, 2019, the subject child Mia, reported to CPS that her maternal grandmother, Pamela H., and her mother were hitting each other in the home. The subject child Mia also reported that the police came to her home on March 8, 2019.

On or about March 14, 2019, according to subject child Lalah' daycare provider, the subject child Lalah is often observed to be unkempt. Staff members reported to CPS that the subject child Lalah's clothing is always dirty and she is observed to have an odor. Additionally, her hair is messy and food is sometimes observed in her hair. According to staff members, they have communicated the concerns of the subject child appearing disheveled with the respondent mother, but it continues to be an ongoing concern.

Wherefore, the subject children are neglected children under the Family Court Act.

On March 15, 2019, when the matter was first before the Court, the Respondent was psychiatrically hospitalized and not present. ACS reported that all three of the subject children had been emergency removed the previous day and requested a remand. Based on the facts presented to the Court, the children were remanded to the care of the Commissioner and reasonable efforts were excused. The matter was adjourned to March 22, 2019 for return of service.

On March 22, 2019, the Respondent appeared and was assigned a counsel. A Guardian ad Litem was requested, and one was assigned by the Court. Subsequently, counsel for the Respondent accepted service, waived a reading of the petition and entered a general denial and issues were joined. The Court recapped all prior orders, and the Respondent reserved her right to a 1028 hearing. The agency was directed to explore the maternal grandmother as a resource, and the matter was adjourned to May 13, 2019 for a conference and return of service on an order to show cause for records and to June 26, 2019 for fact-finding and for a permanency hearing.

On June 26, 2019, the matter was scheduled for fact-finding and for a permanency hearing. However, the fact-finding hearing did not proceed because psychiatric records from Lincoln Hospital had not yet been received and distributed. ACS was ordered to turn over all discovery in its possession by a certain date, to follow up with Lincoln Hospital regarding the subpoenaed records and to file a motion to compel by July 12, 2019 if such records were not received.[FN1] Also before the Court on this day was an order to show cause which had been filed on June 24, 2019 by the Respondent seeking a return of her children pursuant to FCA §1028. The motion was granted in that a hearing was scheduled. All counsel consented to combine the permanency hearing and the 1028 hearing, and the hearing commenced with the acceptance of Petitioner's Exhibits 1 and 2 and Respondent's Exhibit A into evidence. The Court ordered the Respondent to have unsupervised sandwiched visits with the children every Tuesday and Thursday, and the matter was adjourned to July 16, 2019 and July 29, 2019 for the continued combined 1028 and permanency hearing and to October 28, 2019 for fact-finding.

On July 16, 2019, the matter was scheduled for the joint 1028 and permanency hearing. However, on consent of all counsel, Ms. H. was ordered to submit to a full mental health evaluation with Family Court Mental Health Services (hereinafter, "MHS"). Additionally, on consent of all counsel, ACS entered various documents into evidence as Petitioner's Exhibits 3 through 6. Prior to the adjournment of the matter, counsel requested an expansion of parenting time. The application was granted in that Ms. H. was permitted to have extended unsupervised time during her sandwich visits.

On July 29, 2019, the matter was scheduled for the joint 1028 and permanency hearing. It was reported that MHS had scheduled an evaluation of Ms. H. to occur on August 13, 2019. The Court ordered that each week going forward, the Respondent was to have three unsupervised day visits and one agency supervised visit with the children. The matter was adjourned to September 9, 2019 for permanency hearing and to September 18, 2019 and September 26, 2019 for the continued 1028 hearing.

On September 9, 2019, the continued joint 1028 and permanency hearing resumed with the Court and all counsel receiving the MHS evaluation. Additionally, counsel for the [*3]Respondent had filed an expert disclosure pursuant to CPLR §3101(d) for psychologist Steven Maury Schwarcz Kurtz PhD, ABPP (hereinafter, "Dr. Kurtz"), seeking to proffer him as an expert in selective mutism. Counsel indicated its intent to have Dr. Kurtz testify at fact-finding and noted that he was also available to provide treatment to the Respondent. All counsel agreed to consider taking the testimony of Dr. Kurtz to use at both fact-finding and the FCA §1028 hearing. At the conclusion of this appearance, the Court ordered ACS to pay forthwith for Ms. H. to receive intensive behavioral therapy services from Dr. Kurtz, an expert in selective mutism. ACS was also ordered by the Court to pay for one hotel overnight visit for the Respondent and the subject children, which was to take place between this date and the following court appearance. The matter was adjourned to September 18, 2019 and September 26, 2019 for the continued combined hearing and to October 28, 2019, December 2, 2019 and December 18, 2019 for fact-finding.

On September 18, 2019, the combined hearings continued with ACS entering into evidence Petitioner's Exhibit 7. ACS was ordered to prepare a report informing the Court and all counsel about the circumstances involving the children's placement in a kinship home prior to their placement in the current foster home and whether these events contributed to the concerns about their behaviors as stated on record. ACS was also ordered to pay for two non-consecutive hotel overnight visit for the Respondent and the subject children, which were to take place between this date and the following court appearance. Finally, the Court ordered ACS to make a referral for play therapy to multiple providers.

When the combined hearing continued on September 26, 2019, ACS entered the MHS Clinical Report into evidence as Petitioner's Exhibit 8 and an agency court report as Exhibit 9. The Court ordered ACS to pay for two consecutive hotel overnight visit and also for one additional overnight for the Respondent and the subject children, which were to take place between this date and the following court appearance. The Court also ordered ACS to immediately identify and put in place supports for the Respondent and the children during these stays, either with the assistance of the Family Preservation Program, a dyadic therapist or some type of case work services available to be present in the room with Ms. H. for some portion of the visit. Finally, ACS was ordered to make a referral for supportive family housing forthwith before the matter was adjourned to October 10, 2019 and October 11, 2019 for the continuation of the hearing.

On October 8, 2019, the attorney for the children filed an order to show cause seeking to terminate the Respondent's overnight hotel visits based on assertions that the children were getting injured and the hotel no longer welcomed the family. The motion was granted in part and the overnight visits were temporarily suspended.

On October 10, 2019 and October 11, 2019, the combined 1028 and permanency hearing continued with ACS taking the testimony of Good Shepherd Services case planner Ms. Carney H. (hereinafter, "Ms. C.H."). Her testimony did not conclude, and the matter was adjourned to October 24, 2019, on which date no testimony was heard due to Ms. C.H.'s failure to appear in Court.

On the next scheduled appearance, October 28, 2019, Ms. C.H. again failed to appear in court to continue her testimony. On consent of all counsel, Ms. C.H.'s testimony was stricken since she failed to appear or communicate with counsel for ACS. ACS resumed its case by entering into evidence Petitioner's Exhibits 10 and 11, and the Respondent entered into evidence Exhibit B. ACS called as its next witness, ACS Child Protective Specialist Ms. Heidy C. (hereinafter, "Ms. C."), whose testimony was completed. At the conclusion of Ms. C's testimony, ACS rested. Counsel for the Respondent subsequently made a prima facie motion asking the Court to grant her FCA §1028 application seeking a release of the children to her care. The application was denied, and the Court ordered the Respondent to have overnights weekend visits over the course of five different weekends. The matter was adjourned to December 2, 2019 and December 18, 2019.

On November 27, 2019, a motion was filed by counsel for the Respondent asking the Court to enforce compliance by ACS with the visitation order issued on October 28, 2019. Simultaneously, another motion filed by ACS was pending before the Court seeking to suspend Ms. H's visits due to an injury Lalah sustained to her leg and having to be seen at the Child Advocacy Center. While the Court temporarily suspended the family's overnight visits, the Respondent and the children were ordered to have unsupervised day visits on three separate days before the adjourned date of December 2, 2019.

On December 2, 2019, the combined hearing continued with the Respondent presenting Dr. Kurtz as her first witness, whom all counsel stipulated to being deemed an expert in selective mutism. Counsel for Ms. H. entered the curriculum vitae of Dr. Kurtz into evidence as Respondent's Exhibit C, and on this date, the testimony of Dr. Kurtz was completed. Upon receiving a report that the unsupervised day visits went well, the Court ordered the Respondent and the subject children to have unsupervised day visits for four hours per day, seven days per week going forward, and the matter was adjourned to December 18, 2019.

On December 18, 2019, the matter was calendared for the continuation of the combined contested hearing. However, also calendared was a motion filed by counsel for the Respondent asking the Court to hold ACS in civil contempt for failing to comply with two of the Court's orders from September 9, 2019 and September 10, 2019. At the conclusion of oral arguments pertaining to the motion for civil contempt, the combined hearing continued with the Respondent called her mother (hereinafter, "Maternal Grandmother") as her second witness. While her direct examination was completed, her cross-examination was not, and the matter was adjourned to January 3, 2020. During the Maternal Grandmother's testimony, counsel for Ms. H entered into evidence as Respondent's Exhibit F, recordings depicting interactions of the Respondent and her children.

On January 3, 2019, a variety of documents were entered into evidence by both ACS and counsel for the Respondent on consent of all counsel. The contested hearing resumed with the Maternal Grandmother completing her cross-examination. Upon the conclusion of her testimony, all sides rested, waived summations and the matter was adjourned.

The matter was adjourned and is next before the Court on January 23, 2020 for decision.

Documentary and Testimonial Evidence:

The following documents were received into evidence at this 1028 Hearing:

Petitioner's Exhibit 1 — Sworn Permanency Hearing Report, dated June 26, 2019

Petitioner's Exhibit 2 — Good Shepherd Services Court Report, dated June 25, 2019

Petitioner's Exhibit 3 — Certified and Delegated Metro Community Health Centers Mental Health Records (regarding the Respondent) — Mental Health Screening, dated May 22, 2019

Petitioner's Exhibit 4 — Metro Community Health Centers — Mental Assessment/Adult Psychiatric Evaluation (regarding the Respondent), dated May 9, 2016 and signed by Carol Longshore

Petitioner's Exhibit 5 — Metro Community Health Centers Mental Assessment (regarding the Respondent), dated June 5, 2019 and signed by Promila Thakker, MD

Petitioner's Exhibit 6 — Lincoln Hospital Discharge Summary (regarding the Respondent), dated March 18, 2019

Petitioner's Exhibit 7 — Good Shepherd Services Court Report, dated September 17, 2019

Petitioner's Exhibit 8 — MHS Clinical Report, dated September 9, 2019

Petitioner's Exhibit 9 — Good Shepherd Services Court Report, dated September 25, 2019

Petitioner's Exhibit 10 — Family Services Progress Notes, spanning from July 1, 2019 through October 18, 2019

Petitioner's Exhibit 11 — Good Shepherd Services Court Report, dated October 7, 2019

Petitioner's Exhibit 12 — Photograph (Mia's neck)

Petitioner's Exhibit 13 — Photograph (Mia's torso)

Petitioner's Exhibit 14 — Investigation Progress Note, dated March 8, 2019

Petitioner's Exhibit 15 — Family Services Progress Note, dated October 11, 2019

Petitioner's Exhibit 16 — State Central Register Intake Report, dated December 29, 2019

Petitioner's Exhibit 17 — Family Services Progress Note, dated December 27, 2019

Respondent's Exhibit A — Order to Show Cause, dated June 24, 2019 (with Exhibits A through N) (Seeking a release of the subject children to the Respondent)

Respondent's Exhibit B — Family Services Progress Note, spanning from June 27, 2019 through July 2, 2019

Respondent's Exhibit C — Curriculum Vitae of Steven Murray Schwarcz Kurtz, PhD, ABPP

Respondent's Exhibit D — Article entitled "Surface Electromyography to Identify Laryngeal Tension in Selective Mutism: Could this be the Missing Link?", by Cesar E. Ruiz and Evelyn R. Klein, published December 17, 2018

Respondent's Exhibit E — The Occasional Case Against Broad Dissemination and Implementation: Retaining a Role for Specialty Care in the Delivery of Psychological Treatments," by Jonathan Comer and David Barlow [only marked for identification and not entered into evidence]

Respondent's Exhibit F — CD Recording (Respondent's interactions with subject children)

Respondent's Exhibit G — Letter from Kurtz Psychology, dated January 2, 2020 and signed by Carly Mayer PsyD.

Respondent's Exhibit H — Investigation Progress Notes, spanning from March 8, 2019 through April 9, 2019

The following witnesses testified:

Called by Petitioner

ACS Child Protective Specialist Ms. Heidy C.

Called by Respondent

Dr. Steven Kurtz

Maternal Grandmother

Called by Attorney for the Child

None

A Summary of the Testimonial Evidence is as Follows:

ACS Child Protective Specialist Ms. Heidy C.

The assigned Child Protective Specialist Ms. C. testified that on October 9, 2019, she had an opportunity to speak with the subject child Mia in her foster home. She testified that Mia told her that during one of their visits, Makaya had run out of the hotel and that the "hotel lady" had to get her and bring her back into the hotel, while her mother stood waiting at the glass. She further testified that Mia showed her that she had two scratches — one on her neck and the other on her torso — both of which were in the healing stage. The child informed her that her mother had accidentally scratched her while grabbing her to prevent her from getting lemonade. On cross-examination, Ms. C. determined that Mia was not in need of medical care for the scratches she sustained. She also testified that Mia never reported feeling uncomfortable or afraid around her mother or that she did not enjoy the visit with her mother.

Dr. Steven Kurtz

Dr. Kurtz testified that selective mutism is an anxiety disorder, and that it had been categorized as such since 2013 in both the Diagnostic and Statistical Manual of Mental Disorders and the International Classification of Diseases. Prior to 2013, selective mutism was in a side category of unclassified child and adolescent disorders. He testified that the basis for recategorizing the disorder was based on an understanding that it was an anxiety disorder and that it affected more than just children and adolescents. Dr. Kurtz defined the key element of selective mutism as the failure to speak where speaking is expected, while at the same time, speaking in other situations. He explained that to arrive at a diagnosis of selective mutism, an individual's failure to speak cannot be attributable to a language or communication disorder, difficulty or discomfort in learning a new language or a psychotic or autism spectrum disorder. Finally, Dr. Kurtz testified that the possibility of malingering should be ruled out by searching for evidence that would support the notion that there is secondary gain to being someone who does not speak to certain persons under certain circumstances.

Dr. Kurtz described the way in which a diagnosis of selective mutism specifically presents by describing some classic symptoms. First, he testified that when an individual consistently speaks to someone in certain places and then consistently does not speak to certain people in other places and that person is perfectly capable of speaking, that is a hallmark sign of selective mutism. Next, for individuals with selective mutism, there are often distinct physical manifestations of the disorder such as a failure to make eye contact, body stiffness, anxious body gyrations or stereotypes such as jerky movements or hand flapping. Dr. Kurtz testified that although it is not an accepted fact, one hypothesis for such physical manifestations is that individuals are attempting to signal their discomfort in order to dissuade others from attempting to verbally communicate with them. Dr. Kurtz further testified about a phenomenon called the "freeze effect" as a classic symptom of selective mutism. He described the "freeze effect" as a way of shutting down to avoid interactions and halting as many movements as possible as a way to cope with a stressful or anxiety ridden situation if fight or flight is not available.

Dr. Kurtz testified that he is familiar with the study entitled "Surface Electromyography to Identify Laryngeal Tension and Selective Mutism" conducted by Cesare Ruiz and Evelyn Klein entered into evidence as Respondent's Exhibit D. He explained that the study examines the level of muscle tension in the voice box area of children who were being evaluated for selective mutism while they were asked to pronounce their name. Dr. Kurtz explained that the two key findings were that there were differences in muscle tension, and there were changes over time such that when the subjects in the study spent more time with the examiners and became more comfortable, there were significant reductions in the tension observed in the musculature for the baseline for pronouncing vowels per pronouncing their names. Dr. Kurtz testified that interestingly, the most pronounced effect was the decrease in muscle tension over time as they got more comfortable pronouncing their own name. When asked whether there was any relevance of this study on adults suffering from selective mutism, Dr. Kurtz testified that for patients with selective mutism, this study marked the first physiological demonstration of muscle tension in the voice box area consistent with reports by both children and adults who report that their voices get stuck and that they are unable to get their words out.

Dr. Kurtz testified that there are exceptions of individuals with selective mutism being able to speak to strangers or individuals with whom they have no familiarity. He explained that a lack of familiarity can sometimes increase the likelihood that an individual with selective mutism could talk to individuals that they do not know when compared to the likelihood of talking to individuals they have a longer standing history of simply not speaking to. Another exception would be that there is great variability in the patterns of who people talk to and who they do not — elaborating that some individuals will talk to their family members, clergy or supervisors, but not to their coworkers; others may speak to their relatives, coworkers but then not to their clergy or supervisors. Dr. Kurtz testified that the hallmark indicator of selective mutism is not necessarily who an individual specifically chooses to consistently speak to or consistently not speak to, but rather the consistency with which that choice is made.

Dr. Kurtz testified that when a person with selective mutism speaks with someone who is not familiar with them and does not know they have selective mutism, there is less of a learned history of behaving a certain way with that individual so to the extent that the individual with selective mutism does not associate a person with a knowledge that they have selective mutism, it is less anxiety invoking to them and there is an increased probability that they will speak to that stranger. Dr. Kurtz provided an example of a 13 -year -old child in Ireland that he recently treated who desired to have her hair styled a certain way. The child's mother told her that they could go to a new salon in the next town over, but that she would have to explain to the stylist herself how she wanted her hair done. When they went to the salon in the town over, because the adolescent did not know anyone and no one knew her, she was able to articulate to the stylist the style she desired, albeit in an audible whisper rather than with her full voice.

Dr. Kurtz testified that people with selective mutism typically talk within their normal limits of verbal ability and sophistication to close family members or to individuals within their trusted circle with whom they communicate when others who might contaminate the situation for them are not present. He testified that he qualified his statement with the word "typically" because there are times when he has evaluated a person with selective mutism who did not speak [*4]to a family member when no one else was around, albeit this would be a rare presentation.

In diagnosing selective mutism, Dr. Kurtz testified that there is no psychological test or gold standard questionnaire available. The standard steps to make that diagnosis would be to gather a careful history and to review medical records. With respect to gathering a history, Dr. Kurtz noted the importance of not asking a patient with selective mutism a direct question during the initial evaluation. When asked why, he testified that the risk benefit ratio and probability of the person answering you versus the probability that you would immediately become a person who is "contaminated" and to whom they do not want to speak to is unfavorable. Another diagnostic step would entail trying to gain insight into whether there may be a co-occurring disorder. Dr. Kurtz testified that selective mutism is commonly confused with other disorders and mental health conditions such as autism, trauma and oppositional defiant disorder. Dr. Kurtz further testified that lay people typically underestimate the cognitive abilities of individuals with selective mutism because if there is a paucity of what an individual with selective mutism has to say, that often leads people to assume they have low cognitive abilities.

Dr. Kurtz testified that he became familiar with Ms. H. after being contacted by her lawyer's office. Following that contact, he invited the Respondent and her mother to his office to meet face to face with him, after having reviewed some records he was supplied with. Dr. Kurtz testified that he reviewed a paramedics report detailing a visit to the family's home, Lincoln Hospital medical records and some other prior medical records of Ms. H. and a court document mandating an evaluation. In July 2019, Ms. H. and her mother came to his office, and while they were both in the room, he went over a bit of history with questions geared towards the Maternal Grandmother. Dr. Kurtz testified that he did not have direct conversation with the Respondent but noted that he observed her to make her opposition or objection known if her mother said things that she did not agree with. He noted that it struck him and was most salient that Ms. H. did not attempt to hide her sentiments in his presence. Dr. Kurtz testified that at one point, he purposefully excused himself from his own office for the Respondent and her mother to discuss something, and he had no reason to discount that they verbalized with each other outside of his presence.

Dr. Kurtz described how his interview of the Maternal Grandmother entailed asking questions about the onset of symptoms and questions about the people, places and activities and the extent to which the Respondent would speak or not speak in various settings. Although he could not recall the youngest age reported by the Maternal Grandmother, he recalled her informing him that the Respondent's symptoms were very long standing and had existed since her childhood. The Maternal Grandmother further informed him that the Respondent reliably speaks to her, her grandmother and all three of her children. Based on this history and his review of the records, Dr. Kurtz testified that he diagnosed the Respondent with selective mutism and that his diagnosis was based on the fact that she met the criteria of failing to communicate in situations where speaking is expected, despite talking in other situations; that her failure to speak did not appear to be secondary to an inability to understand English; that there did not appear to be exclusively a language or communication disorder and it did not appear to be exclusively in the context of autism or psychosis.

Dr. Kurtz testified that the Respondent also appeared to have social anxiety disorder, which is the most common co-occurring diagnosis. He specified that his diagnosis of social anxiety was presumptive because the criteria for making that diagnosis requires the patient to inform you that they anticipate or fear embarrassment or humiliation, and he did not have any first-hand evidence given that Ms. H. remained mute during their meeting. Dr. Kurtz also testified that since Ms. H. did not verbally participate, he was unable to assess her cognitive abilities. In order to make an accurate assessment, her verbal participation would have been required for certain tasks, and he did not yet think she was uninhibited enough for the test to be a meaningful measure of her cognitive abilities. Dr. Kurtz testified that he would have to wait until she was able to be more verbally and nonverbally uninhibited before he could move towards testing her cognitive skills. Finally, Dr. Kurtz ruled out the notion that Ms. H. was malingering since there was no evidence of secondary gain that would support her specific pattern of not engaging verbally or nonverbally with individuals.

Based on his education, training and experience, Dr. Kurtz testified that his treatment recommendations for the Respondent would entail a course of cognitive behavioral therapy that was specifically adapted for individuals with selective mutism. He further explained that such treatment entails successive approximations of verbal and nonverbal engagement and reinforces any advancements in a hopefully meaningful way. Dr. Kurtz detailed that in addition to reinforcing verbal engagement, treatment would also incorporate reinforcement of body language such as eye contact and making gestures or sounds and reinforcement of exposure to recorded versions of a person talking (if that was available), to generally try to build up from the tiniest steps to larger steps of communication. Additionally, Dr. Kurtz testified that he would unequivocally recommend Ms. H. to undergo a medication consultation in the hopes that she would benefit from a combined course of behavioral and pharmacological treatment to address the severity of her underlying social anxiety disorder. Dr. Kurtz stressed the importance of having Ms. H. work with a psychiatrist who is familiar with and who has an understanding of selective mutism; given that this variation of social anxiety disorder is so rare in individuals of the Respondent's age and because selective mutism is not a standard part of training for all psychologists, psychiatrists or persons who medicate adult psychiatric patients, having a clinician with familiarity on the disorder would be most beneficial.

Dr. Kurtz testified that he was familiar with a study entitled "The Occasional Case Against Broad Dissemination and Implementation: Retaining a Role for Specialty Care in the Delivery of Psychological Treatments" conducted by Jonathan Comer and David Barlow.[FN2] In this study, he explained that the authors came to the conclusion that while the vast majority of psychiatric and psychological disorders can be treated by generalists using module skills, there is a subset of disorders, such as selective mutism, which require specialty care since the nuances of treatment are of sufficiently sophisticated to be above the level that generalists would have been exposed to in their training. Dr. Kurtz testified that given that the baseline rate of adults who present with selective mutism is so low, there is no identifiable and acceptable gold standard of [*5]therapy to treat adults with selective mutism that is acceptable in the field of psychology. However, in order to fill the void and provide more nuanced care, he developed an adaption of parent child interaction therapy called parent child interaction therapy adapted for selective mutism. Dr. Kurtz testified that his adapted modality of treatment specifically addresses selective mutism by keeping the core principles of a generally acceptable approach and then making some significant tweaks to it based on the condition of the group that the adaptation is being developed for. Dr. Kurtz testified that part of parent child interaction therapy adapted for selective mutism incorporates ensuring that an individual could speak or interact appropriately with all persons in their family and ensuring that they can interact with all important individuals in their lives.

In addition to reading about prior attempts by Ms. H. to engage in therapy referenced in the medical records he reviewed, Dr. Kurtz testified that the Maternal Grandmother shared that Ms. H. had several failed attempts at engaging in therapy due to her inability to verbally participate. Dr. Kurtz was uncertain if those previous attempts to engage in therapy were with clinicians specifically trained to treat selective mutism. The doctor further explained how prior failed attempts at therapy increases the chance that an individual will predict that any future attempts will be a failure and how prior successful attempts increases the chance that a person coming in de novo to another therapist would expect a positive outcome. He noted that in order to combat this challenge, his office provides psychoeducation to individual with selective mutism and their families, explaining the process of prior unsuccessful prior attempts and contrasting how their process differs and offers a better chance of producing a more positive outcome.

On cross-examination, Dr. Kurtz testified that over the course of his career, he treated or supervised the treatment of probably fewer than five adults with selective mutism. After being shown a copy to refresh his recollection, Dr. Kurtz testified that he did not have the opportunity to review the MHS evaluation of the Respondent given that it was completed in August and September, after his July 2019 meeting with her. Dr. Kurtz testified that he recalled what the allegations of the petition filed in this case were and noted that it reported the home was unkempt and that the children had bruises that were unaccounted for at the time. He testified that the Respondent's diagnosis of selective mutism had no relevance to those allegations. Dr. Kurtz concluded his testimony noting that there is nothing about selective mutism per se that impairs an individual's ability to parent.

Maternal Grandmother

The Maternal Grandmother began her testimony stating that during the summer of 2019, she recorded some interactions of her daughter and grandchildren using her cell phone. She explained that one video depicted her daughter and the subject children playing in the park and eating McDonald's; the second video was of the children riding a mechanical horse outside the discount store on Burnside Avenue in July 2019, and the third video showed her granddaughters playing with the Respondent as she interacted with them in the waiting area of the foster care agency in late summer 2019. The Maternal Grandmother testified that she was present at each of these visits, along with her daughter and three granddaughters, and that the videos were a fair [*6]and accurate depiction of the events that transpired during each of the visits.

The Maternal Grandmother testified that prior to the removal of the children on March 8, 2019, they, along with herself and the Respondent, lived together at the case address for approximately four years. Prior to that apartment, they resided together in a family shelter. Although they cohabitated, the Maternal Grandmother testified that her daughter Ms. H. was primarily responsible for the care of the children in that she was the one to wake the children up and to get them prepared for school by bathing, dressing and feeding them. The Respondent was also responsible for bathing the children at night and putting them to bed. The Maternal Grandmother testified that she and Ms. H. went grocery shopping together, but sometimes they shopped separately with the Respondent shopping on her own. As for the children's medical appointments, the Maternal Grandmother testified that she would accompany Ms. H. and sit in the examination room and noted that the children were always in good health. Finally, the Maternal Grandmother testified that the children attended three separate schools and the Respondent would walk all three of the children to their separate schools and pick them up after school. The Maternal Grandmother testified that although she occasionally accompanied her daughter for pick up and drop off, it was not very often. She specified that Ms. H. would be the one to interact with staff at Makaya's and Mia's schools, and at Lalah's daycare, she interacted with the staff daily. Additionally, Ms. H. was the one who always attended conferences and participated in school activities. The Maternal Grandmother noted that she sometimes went with Ms. H. to these events, but for the most part, the Respondent would go alone. The Maternal Grandmother explained that the children's schools and daycare knew that Ms. H. had selective mutism and during their interactions with her, she communicated by nodding her head to indicate yes or no.

The Maternal Grandmother affirmed that she was present in court on December 2, 2019 when Dr. Kurtz testified. She testified that she recalled him stating that an individual with selective mutism may be able to talk during emergency circumstances and described an occasion in which this applied to her daughter. The Maternal Grandmother testified that one day, the children's school had hosted an outing at the movies. The Respondent expressed to her that she wanted to take the girls and during the commute, the MetroCard machine was not working. The Respondent further told her that in that instance, she approached the booth clerk to inform her of the malfunction and was able to conduct a transaction to get her fare. The Maternal Grandmother testified that Ms. H. had called her on the phone to inform her about what she had done that day.

Turning her attention to March 8, 2019, the Maternal Grandmother testified on that day, her mother had called the police to conduct a wellness check on her. However, she was not present in her home when the paramedics arrived to find her daughter Ms. H. home with the children. She explained that they thought her daughter was incoherent because they did not know she had selective mutism. The Maternal Grandmother testified that it was not until the following day at her mother's home when she learned the paramedics had been at her home and that the Respondent was in the hospital.

With regards to how her daughter cares for the subject children, the Maternal [*7]Grandmother testified that she disciplines the girls by taking toys away or telling them that they will not be allowed to go to a certain place. She testified that she never observed the Respondent to hit the children or use any type of corporal punishment. In terms of activities, the Maternal Grandmother testified that Ms. H. would allow the children sit to read a book, watch videos or go with her to the park. The Maternal Grandmother emphasized that Ms. H. read books to her children and spoke to them all the time, both in and out the home. The Maternal Grandmother noted that the children have a lot of energy and run around a lot and that the Respondent controls them in public by using a harness that keeps them close; given that Lalah would mostly be in her stroller, the harness was used for Makaya and mostly, Mia.

On cross-examination, when asked why her mother had called for a wellness check, the Maternal Grandmother testified she had spoken with her mother over the phone about an incident and she believed that was why she called the police. The Maternal Grandmother expressed that she did not wish to elaborate on the details. She noted that the incident did have to do with her mental health, but that she currently feels a lot better. The Maternal Grandmother testified that she is diagnosed with schizophrenia and that she sees a psychiatrist. She specified that she had recently undergone an evaluation and that her psychiatrist had not prescribed or recommended her to take any medication.

Additionally, when asked whether she was aware that at the time of the children's removal in March, Makaya had viral pneumonia and a fever of 101 degrees and Lalah had a cold and a fever of 105 degrees, the Maternal Grandmother responded she was not aware. She testified that approximately two months before her granddaughter were removed, they had physicals at Brightpoint and were noted to be in good health.

The Maternal Grandmother testified that she currently lived alone and apart from Ms. H. in a woman's shelter in the Bronx. When she lived with the Respondent and the children, she testified that there was never a time where she had been away from the home for more than a day. She testified that she is the named payee for the Respondent's SSI benefits, but indicated that she sought to recuse herself as the payee since Ms. H. is a responsible adult.

The Maternal Grandmother described her relationship with Ms. H. as good, despite their mother and daughter issues. When confronted with the question whether she ever told her therapist that her daughter kicked and punched her, the Maternal Grandmother initially stated that she rather not, answer that question. However, she ultimately testified that although her daughter had punched and kicked her when she was a teenager, she did not recall having physical fights with her daughter within the past year. The Maternal Grandmother concluded her testimony stating that she believed her daughter was capable of caring for all three of her children on her own because she has been doing it all along until they were removed.

LEGAL ANALYSIS

The incident that precipitated the filing of this case took place in March 8, 2019 when paramedics transported Ms. H. under the mistaken belief that she was incoherent: unbeknownst to them, she was selectively mute. The children were emergency removed and to date, have been in foster care for a little over ten months.

Whether analyzing a removal application under Family Court Act Section 1027 or an application for the return of children under Family Court Act Section 1028, the court is responsible for determining whether removal is necessary to avoid imminent risk to the children's lives or health. In considering this question, the court must determine whether there is a risk of "serious harm or potential harm to the child[ren]." There must be evidence that the harm or danger is "imminent," that is, "near or impending, not merely possible" (Nicholson v. Scoppetta, 3 NY3d 357 [2004]). The statute further requires that 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 addition, the court must consider whether the risk can be mitigated by reasonable efforts to avoid removal, such as issuing a temporary order of protection or providing services to the family. Id. at 378—379; Matter of Naomi R., 296 AD2d 503 2d Dept. 2002)

At any permanency hearing, the petitioner bears the burden of establishing the appropriateness of a permanency goal by a preponderance of the evidence. An overarching consideration is that children should be returned to their biological parents, if at all possible. In the instant matter, the requested permanency planning goal is return to parent. While all counsel consent to the requested goal, ACS is asking this Court to continue placement of the children in foster care while the Respondent and the attorney for the children are supporting a release of the children to Ms. H.

Caselaw is well established that having a diagnosis of a mental illness in and of itself cannot serve as a sole basis for removal of a child or a finding of neglect (Matter of Joseph A., 91 AD3d 638, 640 [2d Dept. 2012]). It is only when a mental illness causes a parent to act in a way that presents an imminent risk to his or her child's life or health may a removal of the child from the parent's care be supported under FCA §1027 or FCA §1028. See Matter of Noah Jeremiah J., 81 AD3d 37, 42 (1st Dept 2010). In the case at hand, the Respondent has a diagnosis of selective mutism, a rare disorder that is a form of social anxiety disorder. The petitioner, who opposes a release, argues that this disorder hinders Ms. H.'s ability to adequately parent all three of the children. The petitioner also argues that the agency's lack of knowledge regarding whether Ms. H has any additional diagnoses is a risk to the health and safety of the children. However, the Court cannot continue the separation of the Respondent from her children based on an open-ended query regarding the Respondent's mental health, particularly when she has demonstrated to date that there are no major impediments in her ability to adequately care for and parent the children.

The evidence before the Court establishes that despite being selectively mute, Ms. H. has found a way to safely navigate through the world and parent her children. Although she primarily communicates with trusted individuals with whom she has close relationships, she has been known to speak to persons in the community on occasion and has developed methods of [*8]communicating by way of physical signals with individuals she regularly encounters, such as daycare workers or school staff. When conducting business, the evidence establishes that she relies upon text messaging to convey her thoughts. While her children have best been described as active and exploratory, by way of the unsupervised visits that have transpired during the past few months, the Court is satisfied that Ms. H. is equipped with being able to manage the behaviors of her children, despite how challenging that may be. The documentary and testimonial evidence presented establish that Ms. H. is able to independently travel with the children throughout the city, and the recordings which are in evidence as Respondent's Exhibit F, clearly show Ms. H. speaking to her children during a supervised visit "where she asks them whether they want chicken nuggets and Barbeque sauce." In addition, while the children have been in her sole care, Ms. H. has brought the children to school on time and there have been no issues reported by school staff made part of this record. Furthermore, the reports in evidence establish that the Respondent's home has been cleaned, has adequate sleeping arrangements and is a suitable environment for children. To the extent that she needs assistance with maintaining a clean home, such assistance can be implemented.

Finally, the record establishes that Ms. H. is actively engaged in cognitive behavioral therapy that specializes on selective mutism, and that she has made impressive strides towards improving her use of language. The letter from Dr. Mayer of Kurtz Psychology entered into evidence as Respondent's Exhibit G clearly denotes that Ms. H. "has made huge progress in verbalizing within therapy and is able to answer questions with 1-2-word answers. She has been able to make decisions and can be prompted to raise her volume." The letter goes on to report that on one occasion, Ms. H. called her treating psychologist and spoke in full sentences to share concerns over the phone. While her speech was difficult to discern, Dr. Mayer described this as "a promising step towards Ms. H. verbalizing her needs and within the context of selective mutism treatment, this trajectory of gains is quite fast." Additionally, a mental assessment conducted by Dr. Promila Thakker at Metro Community Health Centers, in evidence as Petitioner's Exhibit 5, denotes that "there is no evidence of any mental disorder to prevent Ms. H. from getting her children back in her custody." It recommends that the Respondent is to continue individual psychotherapy to help improve communication skills and confidence in relating to others, and the Court is aware that is precisely what Ms. H. is doing.

In applying the requisite balancing test, this Court has considered whether the risks can be mitigated by reasonable efforts to avoid removal and finds that they most definitely can at this point in time. Throughout the course of this contested hearing, the Respondent was afforded the opportunity to have stretches of unsupervised contact with the children, including overnight weekend visits. At this juncture, since July 2019, Ms. H. has had extensive periods of not only unsupervised visitation, but overnight weekend visitation, with the subject children. Currently, she enjoys unsupervised time with the children seven days a week for several hours each day. While not all of the Respondent's visits have been without incident, overall, the described incidents that raised concern do not rise to the level of imminent risk that justifies a continued separation. The Court is persuaded that despite her diagnosis of selective mutism, Ms. H. can handle the children in a manner that comports with their safety. Ms. H. has proven to the Court that she is willing to comply with its orders and ensure the safety of her children while she [*9]undergoes any further necessary evaluations.

Having reviewed the court file, testimony and evidence before it at this combined permanency hearing and FCA §1028 hearing, this Court first finds that ACS has met its burden of proving that a permanency planning goal of return to parent for the children is appropriate and should be approved. Next, the Court is charged with determining whether there is sufficient evidence before it to sustain a continued separation of the subject children from the Respondent. As to this inquiry, the Court finds that it would be in the children's best interests to terminate their placement in foster care and to temporarily release them to the care of their mother Ms. H. under the supervision of ACS. The Court further finds that ACS has failed to demonstrate that there is imminent risk that cannot be mitigated with the implementation of certain orders and services.

Conclusion:

The totality of the evidence presented at this hearing leads the Court to conclude that the children Makaya, Mia and Lalah will not be at imminent risk of harm should they be returned to the Respondent at this time. In balancing the risks against the harms of removal, the Court finds that with a number of measures and services in place, any harm or imminent risk of harm that arose from the nature of events that led to the prolonged separation of the children from the Respondent can be reasonably mitigated (Naomi R., supra).

ORDERED, that the subject children Makaya, Mia and Lalah are temporarily released to the custody of the Respondent, Ms. H., pursuant to FCA §1028, pending a final order of disposition or further order of the court, under the supervision of ACS and upon the following terms and conditions:

The Respondent shall cooperate with ACS supervision over her household, including allowing ACS access to complete announced and unannounced visits to the home;

The Respondent shall accept reasonable referrals from ACS;

The Respondent shall continue to engage in the intensive cognitive behavioral therapy adapted for individuals with selective mutism and comply any recommendations, until such time as she is discharged from treatment by her mental health provider;

The Respondent shall submit to an evaluation for psychotropic medication, with such evaluation being done by a clinician who has expertise in working with patients with selective mutism;

The Respondent shall enroll in and completed dyadic parent-child therapy beginning with one child and expanding to ultimately include all three children, when deemed appropriate by the [*10]provider.

The Respondent shall ensure that her school aged children attend school daily and on time when school is in session;

The Respondent is ordered to accept a referral for home making services

The Respondent is ordered to accept a referral for intensive preventive services;

The Respondent shall accept a referral for the ACS Family Preservation Program ("FPP") services until intensive preventive services are in place;

The Respondent shall sign releases for ACS to monitor her progress in services;

The Respondent shall not leave the children alone without appropriate adult supervision being in place at all times;

The Respondent shall not allow her mother to live in the home with her and the children.

ACS is ordered to make a referral for dyadic parent-child therapy.

ACS is ordered to refer the family for intensive preventive services within five (5) calendar days from the date of this decision.

ACS is ordered to make a referral to FPP within five (5) days from the date of this decision;

ACS is ordered to visit the case address every other calendar day until FPP services are in place

ACS is ordered to make an immediate referral for home making services in order for such homemaking services to be in place within fourteen (14) days.

AND IT IS FURTHER ORDERED, that pursuant to FCA §1112(b), this order is stayed until January 24, 2020 at 5:00pm. Nothing in this order shall prohibit the petitioner from waiving the stay in the event that ACS wishes to return the child prior to January 24, 2020 at 5:00pm.

WHEREFORE based on the foregoing, the Respondent's application for the return of the children pursuant to FCA §1028 is hereby granted. Notify parties.

Dated:January 23, 2020 Bronx, New York

ENTER:

___________________________

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

Check applicable box:

Order mailed on [specify date(s) and to whom mailed]: ______________________________________

Order received in court on [specify date(s) and to whom given]: _______________________________

Courtesy copy e-mailed to counsel on [specify date(s) and to whom e-mailed]: _________________ Footnotes

Footnote 1:ACS was ordered to turn over all discovery in their possession by the close of business on June 28, 2019 and to follow up with Lincoln Hospital to obtain the subpoenaed records by June 28, 2019. If the records were not received by July 1, 2019, ACS was directed to file a motion to compel by the close of business on July 12, 2019.

Footnote 2:This study was marked as Respondent's Exhibit E for identification but was never moved into evidence.