Matter of D.J. (F.H.)

[*1] Matter of D.J. (F.H.) 2020 NY Slip Op 51228(U) Decided on September 30, 2020 Family Court, Bronx County Gordon-Galchus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2020
Family Court, Bronx County

In the Matter of D.J., F.J. Children Alleged to be Neglected by

against

F.H., D.J, Respondents.



NN-06164-65/20



Attorney for the Petitioner- Administration for Children's Services (ACS)

Family Court Legal Services900 Sheridan AvenueBronx, NY 10451By: Yesenia Campiglia, Esq. Attorney for Respondent Mother- F.H.The Bronx Defenders360 East 161st St. Bronx, NY 10451By: Cassie Hazelip, Esq. Attorney for Respondent Father- D.J.Law Office of Aleza Ross31 Oak Street, Suite 26Patchogue, NY 11772Attorney for Subject Children- F.J. and D.JLegal Aid Society900 Sheridan AvenueBronx, NY 10451By: Elizabeth McCullough-Sanden
Ronna H. Gordon-Galchus, J.

The Agency filed a petition against Respondent Mother and Respondent Father on March 3, 2020 alleging that Respondent Mother F.H. (hereinafter RM) and Respondent Father D.J. (hereinafter RF) failed to provide the children with proper supervision or guardianship by misusing a drug or drugs and are not voluntarily and regularly participating in a rehabilitative program. In part, the petition alleges that when Subject Child F.J. (hereinafter SC F.J.) was born on February 28, 2020, RM and SC F.J. tested positive for cocaine and marijuana and that SC F.J. remained hospitalized after birth experiencing withdrawal symptoms; RM tested positive for cocaine on or about January 9, 2020 during her prenatal appointment; and RM admitted to using cocaine throughout her pregnancy and has a history of using cocaine and flakka and was not [*2]currently engaged in a substance abuse program. The petition also alleges that according to Broward County Child Protective Services staff in Florida, RM has two other children who have not been in her care since approximately 2016 and that RM has a child protective history for substance abuse and abandonment. Also alleged is that Subject Child D.J. (hereinafter SC D.J.) was underweight and RF admitted to using ecstasy every three days, using marijuana daily, and drinks Corona beer daily.

Both children were remanded to the Commissioner of ACS. RM was present at the initial appearance. RF did not appear before this Court until June 2, 2020. This Court ordered agency supervised visits.

On August 6, 2020 RM filed an Order to Show Cause requesting the children return to her care or a hearing pursuant to FCA §1028. This 1028 application pertains only to RM. RM had filed an Order to Show Cause on April 15, 2020 requesting extended unsupervised overnight visits with the SC D.J. and F.J. Both Petitioner and counsel for the children opposed unsupervised visitation. In a decision dated May 4, 2020, this Court denied that motion citing RM's extensive child protective history in Florida, her failure to comply with Court orders in Florida, continued contact with Respondent D.J. and the positive drug results on February 28, 2020 for both her and D.J. This Court granted RM resource community visits after three negative random drug screens, with RF not to be present during the visits. The family resource who was eventually cleared does not want to supervise visits.

A 1028 hearing was held on August 14, 27, 28, September 14 and 18. Counsel consented that all motions, responses, and supporting documentation from RM's overnight request be admitted into evidence for this hearing. This evidence also included a fax from Broward County Sheriff's Office Child Protective Investigation Section which included multiple attachments from the Florida Department of Children and Families regarding the child protective history of respondents. Also included in evidence for RM's 1028 application were the papers attached to that application, a statement of agreed upon stipulation of facts by counsel, drug test results from July 27, 2020 and August 6, 2020 for RF, and a court report dated September 11, 2020 from case planner A.O. (hereinafter O) and case planner P.S-H. (hereinafter S-H). The following evidence was also labeled and admitted into evidence for the hearing:

Petitioner's 1: Notarized affidavit from Case Planner O.Respondent's A: Letter dated August 12, 2020 from L.L, LMHC, of New Opportunity Counseling Services.Respondent's B: Photograph of RM with her children and her cousin's daughter during a supervised visit on August 13, 2020.Respondent's " target="_blank">Nicholson v Scoppetta, 3 NY3d 357 (2004), the Court of Appeals [*3]clarified the standard of "imminent risk" and the factors courts must weigh in deciding applications pursuant to FCA §§1022, 1027 and 1028. Courts must consider whether the "children were actually or imminently harmed by reason of [the parent's] failure to exercise even minimal care in providing them with proper oversight," (Nicholson at 372) examine the "special vulnerabilities of the child," and conduct an objective evaluation of parental behavior: "would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing." (Nicholson at 370). In determining removal, the Court must balance the "imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal." (Nicholson at 380). Each case has its own unique factual pattern and "imminent risk" is to be determined by an inquiry of the facts in the specific matter.

In the case at bar, the extensive documentary evidence, coupled with the in-court testimony requires continued removal of the subject children, as they would be at "imminent risk" if returned to RM's care. RM has a long, protracted history with child protection services in Florida, an extensive history of using flakka and cocaine, and her two older, though very young, children have been adopted by her mother who resides in Florida. RM tested positive for cocaine and marijuana, as did SC F.J. at the time of her birth in February of 2020 and RM admitted using cocaine during her pregnancy with F.J. during her testimony. The child D.J. is 16 months old and F.J. is 7 months old, and thus particularly vulnerable.

In evaluating and assessing RM's testimony, it is apparent that she yearns to have her children return to her care. However, she lacks insight as to the level of care, monitoring, and long-term planning required to address her drug addiction. Although she submitted to drug testing through her out-patient program, such testing was not random, as she knew what days screenings would occur. A review of the lab results submitted by Respondent as Exhibit C show that the screening was done nearly exclusively on Tuesdays and Thursdays. It was not until a time in August 2020 that she began to comply with random testing by the Agency. The evidence shows that she failed to submit to testing by the Agency for the entire month of July as well as August 11 and 13. Her reasons for not being compliant, such as she may have been out of town, had doctor appointments or school were not persuasive and were self-serving. Her testimony that she went to Atlantic City to celebrate her birthday with RF and therefore was not available for screening demonstrates an example of her failed insight and ability to fully appreciate her addiction. Although "laudable" that she completed the outpatient program at Samaritan Village, "that participation does not successfully overcome her prior inclinations and behavior patterns, despite what may be the best intentions." In re Kimberly H., 242 AD2d 35, 39 (1st Dept. 1998); Matter of Nyasia J. v. Francesca J., 41 AD3d 478, 479 (2nd Dept., 2007). The Florida child protective history documents are alarming. RM abandoned her older children for periods of time without communication as to her whereabouts. The entries state RM "has a history of leaving the children for long periods. Every time the mother leaves, she gives different explanations." She required hospitalization when she was six months pregnant with her second child for testing positive for cocaine. This also discredits her affidavit which states: "F.J. was my 10th pregnancy. Right before D.J. I had two miscarriages. I did not use any drugs during the pregnancies of any of my other kids." When trying to explain this inconsistency, she stated that she "figured my two older kids aren't part of this case. That's why I put that in the affidavit." During her testimony, she referred to the positive toxicology in February of 2020 as a "hiccup," and her reason for using cocaine in January and February of 2020 was a source of self- medication since she was in pain during her pregnancy. She denied using drugs past 2016, but had a positive test for cocaine in January 2017, as reflected in the reports from Florida. RM's 2018 psychiatric evaluation reports that "she claims to be sober since April 2017." RM was in two prior inpatient drug rehabilitation programs in Florida during 2016, 2017 and 2018. She testified that she was court-ordered by "her criminal judge" and thus did not enter of her own volition. Her affidavit specifically states that she was told to either go into an inpatient program or face criminal charges. Although the [*4]evidence indicates she was recommended for an inpatient program during her CASAC evaluation, she denied that. She states in her affidavit, "I did not need inpatient."

This Court had ordered that RF and RM visit the children separately. However, there were times when the two visited the children together. Case planner O. states in her affidavit that when RF was told the visit had to be separate, he replied, "No. We are not doing that." Although reasons offered for this violation of the court order were that they shared one car, RM also testified that the car is in her mother's name and belongs to her. Caseplanner O testified that case planner C notified her that during a visit he smelled marijuana emanating from the car and RF D.J.'s "eyes seemed bloodshot." RF has not complied with agency's referrals and most recently tested positive for marijuana on July 27 and marijuana and cocaine on August 6, 2020. RF denied using cocaine when he testified on September 14th. Both RM and RF testified that RF travels often and now resides most of the time in Connecticut. However, both he and RM are the lease holders of their current residence, a lease which RM stated expires on September 29, 2020. Both left Florida in 2019 and came together to New York. The child protective documents from Florida state that RM was not interested in reunifying with her older children by moving into her mother's home where the children lived. Rather, when she was discharged from the halfway house in June of 2018 and "chose to move in with her boyfriend rather than moving in with the MGM." RM was reported as saying, "I do not want to choose between my children and the man I am about to marry." At the hearing she denied making that statement and testified. "No, I never told them that. Not to my knowledge." She testified that she and her older daughter A (not a subject child) visited RF at a halfway house and that he had recently been released from jail, but stated that she could not recall why he had been in jail. RF testified that he was at the halfway house because he violated his probation, and that he was on probation for delivery of cocaine which he admitted was selling cocaine. This Court does not credit RM's testimony that she could not recall this information. She also denied telling Florida authorities that RF was a drug user, though the Florida documents state, "she reported that her boyfriend whom they call 'D.J' is also a drug user." This Court does not credit RM's testimony that she cannot recall this information about RF. Though not legally married, both RF and RM refer to each other as husband and wife. RM introduced an August 2018 Florida Court order (Exhibit H) to show that she had unsupervised visits with her older children and there was no prohibition about having RF present. However, the Florida child protective documents include entries that RM was told by the judge that her boyfriend (RF) was not to be present during visits. RM denied this. A new abuse case was called in October 2018 because RM took her daughter, A, to the halfway house to visit RF. A disclosed to her teacher that while she was at her mother's boyfriend's home, her mother told her to "put the pillow over my head so I couldn't see anything." It should also be noted that Exhibit H has a handwritten entry which states, "the caregiver does not believe the mother has gained insight," and that the "caregiver believes mother has deserted the family."

In the past RM has been prescribed various psychotropic medication such as Seroquel, Lexapro, Zoloft, Wellbutrin, and Prozac. She had a psychiatric evaluation in October 2018 where it was reported that RM had a history of being diagnosed with depression, anxiety, and PTSD. It was recommended that she see a psychiatrist monthly to monitor her mood and determine her need for medication. RM did not recall having this evaluation. The report also indicates that RM stated, "I was on medications. I stopped them last April. I do not want to be on meds. I want to see if I can handle it on my own. My depression comes and goes." In evidence as Respondent's A is a letter dated August 12, 2020 from RM's therapist Luiz Lopez. Mr. Lopez did not testify. His letter states that RM had an initial intake appointment with him on June 24, 2020 and attended four sessions and requested that two be rescheduled. The letter indicated that he discusses coping skills and managing stress. She is engaged and asks questions. No other details were provided. This letter was extremely limited in nature. When questioned about taking medication, RM testified:" Me, personally, I don't believe in medication and I don't want to take no type of medication." She also testified that when her therapist asked if she wanted to be referred to a "psych doctor" because I let him know how I'm always in my head" she told him "I don't need so [*5](sic) psych doctor." When questioned about her therapy and asked how long she will continue with therapy, she stated, "I am going to do that for a while. I mean, not a long period, but I'm going to continue with it."

Although the attorney for the child now supports the 1028 application, she had opposed overnight visitation a few months ago and requested that the ICPC process begin so the children can reside with the maternal grandmother in Florida.

The agency's concerns that RM's ability to enforce an order preventing RF from being present is only one consideration in this matter. RM's long standing drug addiction, her failure to address her true needs and the reason for the removal, as well as her failure to report for random tests puts the children at imminent risk. See Matter of Audrey L., 147 AD3d 838 (2nd Dept. 2017). RM's compliance in attending a short outpatient program and her limited engagement in therapy does not negate imminent risk. Her testimony clearly indicates that she wants to dictate the course of services as opposed to getting what she needs for long term recovery. When confronted with questions which are uncomfortable, she denies or does not recall. When RM's attorney asked if she was willing to participate in additional referrals if asked by ACS, her initial response was, "I mean if I have to. I mean if it's—yes. I'll say yes. Yes." This response also reflects RM's reluctance at this time. RM often attempted to make excuses for herself and her response to answers were indicative that she lacks insight to the severity of her addiction. Her denial or lack of knowledge of RF's behavior, her belief that he will not violate any court orders, and her statement in 2018 statement about having to choose between RF and her children further emphasize her inability to be ready to care for her children.

Unlike the situation in In re Gavin S., 52 Misc 3d 1221(a) (Kings County Family Court 2016), which counsel for respondent referred to in summation, RM in the case at bar lacks "insight" into her "treatment needs." Similarly, counsel's reliance on Matter of David G., 29 Misc 3d 1178, 1186 (Kings Family Court 2010) and Matter of Baby Boy D., 127 AD3d 1079 (2nd Dept. 2015) is not comparable, as removal in the instant case is not "based on assumptions, guesswork and unsupported predictions of future behavior" but rather after assessing the documentary and testimonial evidence including RM's credibility, behavior and lack of insight.

The road to recovery and rehabilitation is a long journey. RM has begun that process. It is paramount that she continues to take steps forward, toward the goal of reunification. She has struggled and continues to struggle with her drug addiction. Each relapse and reluctance to participate in a full scope of services and monitoring is a step backwards. This Court does not believe that RM has the current protective capacity to care for F.J. and D.J.. RM must be open to participate in intensive drug counseling, a mental health evaluation which includes any recommendations for medication management, and long-term therapy to address her drug and mental health issues. However, in order to be successful, she must participate in these services because she wants to, not because of an order. She left Florida and came to New York, but now wishes to return to Florida. Her own stability must be addressed before she can care for her own children. F.J. and D.J. are infants and do not have the protective capacity to ensure their own safety in their mother's care. See Matter of Novelise M., 54 Misc 3d 1202(A) (Bronx Family Court, 2016). RM has made some steps on the road to reunification, but this journey is very much still in process.

This Court finds that continued removal of the children from RM is necessary to avoid imminent risk to their life or health. This decision is made after a thorough evaluation of the documentary and testimonial evidence and counsels' arguments. At this time, orders cannot be put in place to mitigate that risk. However, the Court does take notice both of RM's engagement with some services, her recent compliance with random testing, and the importance of the bonding process which is critical for these very young children. Therefore, some sandwich unsupervised community visits will be permitted under the following conditions.

Ordered:

SC F.J. J. and D.J. J. placement with the Commissioner for ACS pursuant to FCA §1028 is continued, pending a final order of disposition or further order of the court.

The Agency is directed to continue to randomly test RM, random testing being defined as same day notice. This testing will occur on different days of the week, including weekends. If RM continues to test negative after three consecutive random tests, she shall have sandwich visits in the community, two times per week, two hours per visit. The agency has the discretion to expand the length and frequency of the sandwich visits. These visits will be in addition to supervised resource visits. The sandwich visits shall start and end at the agency or another designated location so RM and SC's may be assessed before and after the visits by the case planner. RF D.J. shall not be present during any visitation time with RM. RM shall not be under the influence of any illicit drugs or alcohol and shall not be permitted to drive with the children. If RM violates any of the conditions of the sandwich visits, such visits shall be suspended.

The agency is further directed to conduct a home assessment of RM's current residence.

A conference will be scheduled within 45 days and ACS shall submit an updated report.

Conclusion:

WHEREFORE, the Court denies the application of the respondent mother, F.H., for release of the subject children and orders visits as outlined above.

This constitutes the decision and order of the Court.

Dated: September 30, 2020

Bronx, New York

ENTER:

______________________________

Hon. Ronna H. Gordon-Galchus

Judge of Family Court