Matter of J.D.E. (L.E.)

[*1] Matter of J.D.E. (L.E.) 2023 NY Slip Op 51179(U) Decided on November 3, 2023 Family Court, Bronx County Kaplan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2023
Family Court, Bronx County

In the Matter of J.D.E., J.M.E.
Children Alleged to be Abused and Neglected by L.E.



Docket No. NA-20521-2/23

David Kaplan, J.

Respondent Mother L.E. ("Respondent") moves by Order to Show Cause requesting that the Court "schedule an expeditious evidentiary hearing, at which parties will present evidence and arguments regarding [Respondent's] application to place the children with the Children's maternal uncle . . . pursuant to Section 1017 of the Family Court Act." Both New York City Administration for Children's Services ("ACS") and the Attorney for the Children have filed papers in opposition to the motion and Respondent has submitted an affirmation in reply. The Order to Show Cause is denied for the reasons stated herein.

PROCEDURAL POSTURE

On May 30, 2023, ACS filed the underlying petition alleging, inter alia, that Respondent Mother derivatively severely abused and neglected the Subject Children J.D.E. (DOB XX/XX/2014) and J.M.E (DOB XX/XX/2020) based on the circumstances surrounding their sibling J.I.E's (DOB XX/XX/2017) death on XX/XX/2023. The petition alleges that J.I.E. was found with bruising all over her body and ligature marks on her wrist and that New York Police Department ("NYPD") officers found a mechanism to bind the child in her closet. The petition further includes claims that J.D.E. was found to be malnourished with scars on his body and that he disclosed that Respondent has bound him and J.I.E. in the closet. J.D.E. further reported that Respondent slaps J.M.E. when she cries and that he was left alone to care and cook for his siblings at times. According to the allegations in the petition, the home was also observed to be in deplorable condition and J.D.E. and J.I.E. would sleep on piles of clothes.

Upon the filing of the petition, the Court granted ACS's application to remand J.D.E. and J.M.E. to its care and issued temporary full stay away orders of protection on behalf of the children against Respondent and directed ACS to serve the petition on her and explore kinship resources for the children who remained under observation at the hospital at the time. On June 7, 2023, Respondent appeared in Court and was assigned an attorney who answered the petition on her behalf by asserting a general denial. ACS reported to the Court that day that the children had been placed together in a non-kinship therapeutic foster home after the last court appearance. Respondent, at that time, requested that ACS explore her mother and brother as possible placement resources for the children resulting in the Court formally directing ACS to conduct an investigation into the proposed resources as well as any other family and family-like members pursuant to Family Court Act § 1017.

On June 14, 2023, ACS filed with the court a "1017 Report" prepared by Child Protective Specialist T.C. ("CPS T.C."). As relevant here, CPS T.C. reported that the children are comfortable in their therapeutic foster home and in need of trauma-based mental health [*2]services which were scheduled to commence that day.[FN1] As to the maternal uncle ("M.U.") of the children proposed by Respondent as a potential resource, ACS reported that he does not have child welfare history but that there had been one domestic incident report with the NYPD involving "his daughter taking things to school." The report further detailed that he lives with his wife and their two teenage daughters in a three-bedroom home that has adequate provisions. The investigating caseworker indicated that when she visited the home of J.E., she observed marijuana left out in his room which M.U. stated he uses for recreational purposes outside the presence of his children. The caseworker also observed a bearded dragon in a closet.

The 1017 Report detailed ACS's concerns regarding placement with M.U. as follows:

"CPS Team has concerns around this placement as [M.U.] reported several occasions in which [J.D.E.] was at risk of harm. [M.U.] explained that he was with his nephew [J.D.E.] two weeks ago. [M.U.] explained that his mother called him two weeks ago telling him to go pick up [J.D.E.] from the 42 Prescient [sic]. More specifically, on May 4th, 2023, According to [M.U.] [J.D.E.] was roaming the streets and flagged down the police. The police took [J.D.E.] to the police station. Several calls have been made to [Respondent] who did not respond. The police then called [M.U.]'s mother [MGM] who was unable to pick up [J.D.E.] so she called [M.U.]. [M.U.] explained he picked up [J.D.E.] and kept him in her house until his mother came the next morning to get him. When his mother came to get him [M.U.] and [MGM] explained [J.D.E.] was hysterically crying and fearful, asking to stay with him. [J.D.E.] did not wish to go home. [M.U.] stated he did not know what to do because that was his mother."

Thereafter, on July 24, 2023, Respondent moved by Order to Show Cause for the Subject Children to be directly placed with M.U. pursuant to Family Court Act § 1017. The matter was initially heard the next day on July 25, 2023. At that time, ACS orally opposed the motion by making reference to the concerns noted in the June 14, 2023 1017 Report that called into question his protective capacity as well as noted concerns that marijuana was left out in the open in M.U.'s home. The Attorney for the Children also orally opposed the motion stating that J.D.E. has made allegations against M.U. that she was not yet authorized to disclose and further that he expressed he did not want to see anyone from the maternal side of his family. As M.U. was not present that day in Court, and in light of the concerns raised by opposing counsel as well as representations that the children were showing extensive signs of trauma and in a vulnerable state, the Court adjourned the motion to August 10, 2023.

On August 10, 2023, the parties again appeared in Court and reiterated their positions on the application by Respondent to have the children moved to M.U., including that the Attorney for the Children asserting "[a]nd as I stated, all I can share on the last date is that J.D.E. does not wish to be with anyone in the maternal family or have contact with anyone in the maternal family because of what he's experienced." Respondent then expressly requested a further evidentiary hearing on the matter, to which the Court then stated that based on the positions of the parties, and the review of the 1017 Report and foster agency reports, that it had sufficient information to rule on the matter and that it would be denying Respondent's motion to move the [*3]children to M.U. without prejudice to renewal of the application once the children are in a more stable position. Specifically, the Court noted that:

"In addition to [M.U.]'s suitability being called into question in that he is alleged to have not appropriately responded to the children being in distress, additional circumstances render it an inappropriate time to change the placement of the children at this time. Notably, the children are in a therapeutic home where their needs are being addressed and the child J.D.E. has strongly stated that he does not want to be placed with [M.U.] or anyone from his mother's side of the family. The Court further notes that the children are exhibiting signs of extensive exposure of trauma, as reflected in the June 15, 2023 and August 9, 2023 [Foster Agency] Reports, which has in part manifested itself in a fear of adults. Until such time the children are stabilized, it is premature to contemplate moving them against their wishes as it would be contrary to their best interests."

On September 13, 2023, Respondent filed a new Order to Show Cause, at issue here, asking again for an evidentiary hearing on her prior application to place the children with M.U.. In support of her motion, Respondent includes a statement by M.U. as to his ability to care for the children and willingness to comply with court orders. M.U., in his affidavit, further details his prior relationship with the children, accompanied by photographs, and states that he did not sense anything odd when he returned J.D.E. to his mother in May 2023 after the child was found wandering the streets. As noted previously, both the Attorney for the Children and ACS opposed the motion in writing.

LEGAL ANALYSIS

As a threshold matter, Respondent's motion is procedurally flawed as it is in actuality a motion to reargue and/or renew which under CPLR 2221 (d)(i) and (e)(i) "shall be identified specifically as such." Respondent had expressly asked for a further formal evidentiary hearing when the matter was heard on August 10, 2023, which the Court denied, and she is now again requesting the same relief herein. Nowhere in the motion does Respondent identify the basis for the motion or the applicable rules of law pertaining to CPLR 2221. However, despite Respondent's failure to comply with the CPLR, the Court will ignore the mislabeling and treat the request under the "proper umbrella" (see Patrick M. Conners, Practice Commentaries McKinney's Cons Laws of NY, CPLR C2221:7 [noting "Most courts facing the problem have ignored a mislabeling of a motion for reargument or renewal and simply treated the motion under the proper umbrella"]; cf. Weiss v Deloitte & Touche, LLP, 63 AD3d 1045, 1047 [2d Dept 2009] [treating motion denominated as leave to renew and reargue as "in actuality, one for leave to reargue"]).

The Appellate Division set forth the standard for evaluating motions to reargue in Foley v. Roche (68 AD2d 558 [1st Dept]). "A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" (id. at 567). Here, Respondent essentially argues that the Court erred in the manner it rendered its August 10, 2023 decision on her July 24, 2023 Order to Show Cause asking for the children to be placed in her brother's care pursuant to Family Court Act § 1017 stating that "the Court must hold an evidentiary hearing before making a determination that there is no parent, relative, or suitable person with whom the children may appropriately reside."

Family Court Act § 1017, entitled "Placement of Children" sets out procedures that the court and local commissioner of social services must take after a determination has been made [*4]that a child must be removed from his or her home. The statute provides that "the court shall direct the local commissioner of social services to conduct an immediate investigation to locate any non-respondent parent of the child and any relatives of the child, including all of the child's grandparents, all relatives or suitable persons identified by any respondent parent or any non-respondent parent and any relative identified by a child over the age of five as a relative who plays or has played a significant positive role in his or her life" (Family Court Act § 1017 [1][a]). As applicable to "suitable" non-parents, the commissioner must inform them that they can seek to become foster parents, or to provide free care under the statute, or may seek guardianship (id.). The commissioner is further obligated to provide the results of its investigation to the court and counsel for the parties (id.).

The statute then requires the court to determine "(i) whether there is a non-respondent parent, relative or suitable person with whom such child may appropriately reside; and (ii) in the case of a relative or suitable person, whether such individual seeks approval as a foster parent pursuant to the social services law for the purposes of providing care for such child, or wishes to provide free care for the child during the pendency of any orders pursuant to this article" (Family Court Act § 1017 [1][c]). Upon receipt of the 1017 Report, the court is to determine whether "the child may appropriately reside with a non-respondent parent or other relative or suitable person" (Family Court Act § 1017 [2]).

The purpose of Family Court Act § 1017, on its face, is a clear direction by the legislature that the commissioner of the local services take affirmative steps to identify and explore kinship and kinship-like resources for a child who is removed from a parent's care. Respondent argues that under the statute, this Court was mandated to hold an evidentiary hearing to assess whether the children can "appropriately reside" with her proposed kinship resource — M.U.. Further, Respondent contends that only if no suitable person exists, may the court consider another placement. The Court finds both of these arguments misconstrue the law.

At the onset, when interpreting a statute, "[a]s a general rule, unambiguous language of a statute is alone determinative" of the legislative intent (Riley v County of Broome, 95 NY2d 455, 463 [2000]). The statute "must be construed as a whole and that its various sections must be considered together and with reference to each other" (People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]). "[W]here a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., 5 NY3d 36, 43 [2000] [citations omitted]). As relevant here, article 10 of the Family Court Act is replete with provisions where the legislature explicitly requires the court to conduct hearings at various stages of the proceeding (see Family Court Act § 1027 [requiring hearing where child has been removed without court order]; Family Court Act § 1028 [requiring hearing where parent or person legally responsible for the care of a child that has been removed requests return of the child]; Family Court Act § 1039 [d] [requiring hearing on allegations of a violation of an Adjournment in Contemplation of Dismissal]; Family Court Act § 1044 [defining fact-finding hearing]; Family Court Act § 1045 [defining dispositional hearing]; Family Court Act § 1071 [requiring hearing where violation of suspended judgment is alleged]; Family Court Act § 1072 [requiring hearing where violation of conditions of supervision is alleged]; and Family Court Act § 1089 [defining procedure for permanency hearings]). Clearly, if the legislature saw it fit to mandate an evidentiary hearing under Family Court Act § 1017, it would have specified. Rather, nothing in the plain language of Family Court Act § 1017 requires that [*5]the court conduct such a hearing (see Matter of Seth Z., 45 AD3d 1208, 1210 [3d Dept 2007] [noting that the commissioner fulfilled its obligation under the statute by conducting the investigation and that "no provision of this statute required a hearing"]).

As Family Court Act § 1017 does not mandate an evidentiary hearing as a matter of right, the inquiry turns to whether it is otherwise required as a matter of due process. Courts have repeatedly held that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner and that a full evidentiary hearing is not necessarily required (see Mathews v Eldridge, 424 US 319 [1976] [holding that an evidentiary hearing is not required before termination of disability benefits where an administrative procedure is in place]; cf. Matter of Edgar V.L., 214 AD3d 501, 513[1st Dept 2023] [holding that an evidentiary hearing was not required when the court determined that a guardian should be removed as the motion was fully briefed and the court had sufficient knowledge of the salient facts which were largely not in dispute]). "All that is necessary is that the procedures be tailored, in light of the decision to be made, to 'the capacities and circumstances of those who are to be heard'" (id. at 349 quoting Goldberg v Kelly, 397 US 254, 268-69 [1970]).

The Court does recognize that there are scenarios in which a more thorough evidentiary hearing may be warranted (see e.g. Matter of Jesse M. [Cynthia L.], 73 AD3d 780 [2d Dept 2010] [holding that lower court erred when it temporarily granted custody of the children to father without a hearing despite ACS raising issues of fact as to the suitability of the resource]). However, where the court has sufficient information to formulate a decision based on reports and the positions of the parties (see Family Court Act § 1046 [c] [with the exception of a fact-finding hearing, the Court may give consideration to any material and relevant evidence including hearsay]), it is within the discretion of the Court to not conduct an unnecessary evidentiary hearing (see Uniform Rules for Fam Ct [22 NYCRR § 205.11 (d)] ["Hearings on motions shall be held when required by statute or ordered by the assigned judge in the judge's discretion]; cf. Matter of Horn v Zullo, 6 AD3d 536 [2d Dept 2004] [holding in the context of a custody modification proceeding, a "hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interest"]).

In the case at hand, Respondent is essentially seeking to dictate where the children reside during the course of the proceeding which, as noted above, runs counter to the intent of the statute and in this instance is diametrically opposed to their best interest.[FN2] Family Court Act § [*6]1017 is not intended or designed to render a right to respondent rather it reflects that kinship resources must be explored and are generally preferrable as placements for a removed child as "[p]lacement with a suitable relative can help the child by maintaining family ties and reducing the trauma of removal" (Matter of Harriet U. v Sullivan County Dept. of Social Servs. (224 AD2d 910, 911 [3d 1996]). The purpose of the statute thus is to benefit the child, not to convey a right to a respondent (see Matter of Gabriel James Mc., 60 AD3d 1066, 1067 [2d Dept 2009] [noting that Family Court Act § 1017 was previously amended by the legislature to "overrule prior case law, which imbued a parent charged with abuse and/or neglect with veto power over the placement of the child with the noncustodial parent or other relative"]), and thus the due process right is primary that of the children and not movant. To the extent that Respondent has an interest in where her children are placed, she has been given an ample opportunity to be heard in her motion papers and through the advocacy and arguments of her attorney when the motion was heard. Absent a substantive issue of fact in dispute, which as detailed below did not exist in this instance in light of the undisputed evidence that the children were in a vulnerable state and that they did not wish to have contact with maternal family, any due process right movant had was satisfied protected by the procedure delineated by the statute and followed by the Court.

Turning to the Court's underlying decision to deny Respondent's initial Order to Show Cause, Family Court Act § 1017 requires that the court consider both the suitability of the proposed resource and whether the child can appropriately reside with that person. As noted in Matter of Harriet U. (224 AD2d at 911], "[o]ne purpose of Family Court Act § 1017 is to help safeguard the infant's physical, mental and emotional well-being ... In making a determination of placement Family Court must consider not only the custodian's ability to provide adequate shelter, but all the facts and circumstances relevant to the child's best interest" (emphasis added). Thus, even assuming arguendo that M.U. is a "suitable person" despite the child protective concerns noted in the investigative report, the Court must still consider whether the children can appropriately reside with him.

As expressly stated in the August 10, 2023 decision, both prongs were considered in the Court's determination when it denied the application to move the children to M.U.'s care in which the Court noted both the child protective concerns as well as the vulnerable mental health of the children along with J.D.E.'s steadfast expressed wishes to have no contact with the maternal side of the family which is not in dispute (cf. Matter of God McQ., 196 AD3d 406 [1st Dept 2021] [holding court appropriately considered the expressed wishes of the children to remain in foster home as a factor in denying a parent's Family Court Act § 1028 hearing]).[FN3]

The reports that the Court gave consideration to in its August 10, 2023 decision, offer a vivid portrayal of highly traumatized children that are in desperate need of therapeutic intervention which is in the early stages of implementation in their foster placement. In the foster agency's June 15, 2023 report, the caseworker notes that the children arrived at the foster [*7]home scared and guarded but have been observed to be opening up and becoming more comfortable. The three-year-old child J.M.E. was observed to hide her unfinished bottles of milk under her pillow to save for the next day. J.D.E. reported that his mother made him eat rotten food and that he would only have good food when it was a lucky day. J.D.E. also disclosed that the scars on his arm were from when his mom would get mad and poke him with a knife and that a scar on his head was from when his mom hit him with an object on a belt. The children reportedly did not sleep initially upon arrival at the foster home and J.D.E. voiced confusion when the foster parent set up a bed for him stating he sleeps on a pile of clothes at home. J.D.E. also expressed that he was scared to meet new people and it was reported that he has to be reassured that his providers will not hurt him when he goes to his appointments. According to the psychiatrist who evaluated J.D.E. on June 14, 2023, the child "showed signs of being very traumatized, full of rage and fear."

In the August 9, 2023 foster agency report, J.D.E., who had been psychiatrically hospitalized between court dates, expressed that he was extremely happy "to be back home with his sister." J.M.E. was reported to be "affectionate and receptive to [the foster parent's] physical proximity suggesting that [the foster parent] has become a source of comfort and protection for the child." The foster parent conveyed though that J.M.E. continues to wake up screaming "no . . . no" at night and sometimes looks for food in the trash. The report notes that according to the child's psychological evaluation she "is perceived as a traumatized and emotionally fragile preschooler who generally and initially resists adult's physical proximity and social engagement. Based on clinical presentation and family history, J.M.E. exhibits a fear-response demonstrated by distress and opposition toward adults and hypervigilance which interferes with child's developmental progress."[FN4]

Based on the above evidence which was properly before the Court at the time of the August 10, 2023 appearance, the Court found that a further evidentiary hearing was not necessary. Any testimony from M.U. regarding his home, background and understanding of the children's needs would have been superfluous in light of the overwhelming evidence contained in the report of the raw trauma the children were exhibiting. Further, any testimony regarding agency case planners' accounts of their observations and conversations would not have shed [*8]further light on the appropriateness of M.U. as a resource for the children at this time when weighed against the steadfast position set forth by their attorney when coupled with the clear signs of trauma that the children are exhibiting. While Family Court Act § 1017 expresses a strong preference for children to placed with family members, it does not require it when it is inconsistent with the child's best interests as it is here (cf. Matter of Harriet U. 224 AD2d at 911] [holding that "suitability" requires a best interests determination]). To require the children to be uprooted to the home of a maternal family member against their steadfast wishes when they are in a highly vulnerable state as reflected by the statements of their psychologist and psychiatrist contained in the foster agency reports, at the urging of their mother who is alleged to have caused the death of their sibling, could only further traumatize the children at this time. Additionally, such a further unnecessary hearing would have only taken away from the need to focus on the myriad of other issues surrounding the family that was pending before the Court at the time — including multiple issues of paternity, visitation and implementation of needed services — and would run contrary to the underlying intention of Family Court Act § 1017 which is not to give veto rights to a parent on placement of a removed child but to reduce further trauma to child. Under these circumstances, the Court had more than ample evidence before it that showed that the children could not appropriately reside with the M.U. against their wishes when it exercised its discretion in denying a further hearing on the matter in its underlying decision. However, as noted in its August 10, 2023, the Court is receptive to revisiting this issue in the future when the children stabilize and when it has a clearer understanding of the prospects of long-term planning for the children. Accordingly, Respondent's application for leave to reargue is denied.

To the extent that the motion can be construed as a motion to renew in light of new information annexed to it in the form of an affidavit and photographs, leave to renew is also denied. A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion (CPLR 2221 [e][2] and [3]). As the new facts alleged were otherwise readily available at the time of the first application and would not otherwise change the prior determination, the Court denies the motion.

CONCLUSION

Accordingly, the Court construes the present order to show cause as one seeking leave to reargue and renew the Court's August 10, 2023 determination on Respondent's request for an evidentiary hearing on her Family Court Act § 1017 application that the Subject Children be moved to the care of M.U. and upon review of said motion, the Court denies Respondent's application for leave to do so.

Footnotes

Footnote 1: The report also includes information regarding Maternal Grandmother ("MGM"), putative Paternal Grandmother T.C., and R.B. who has subsequently been determined to be the legal father of J.D.E.

Footnote 2: During the course of the proceeding, paternity was established by R.B. as the lawful father of J.D.E.. The child has expressed a desire to live with his father and the foster agency has been actively planning with R.B. to educate him on the child's needs in anticipation that the child will be moved to his care at an appropriate time. Respondent remains opposed to the child moving to his father's care and is, in part, using this motion to interfere with that possible plan, as evidenced by M.U. including numerous allegations and attacks as to R.B.'s fitness as a parent in his affidavit. That issue is not yet ripe for determination nor is it appropriate for movant to include such information in a motion to reargue (see CPLR 2221 [d][2] [a motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion"]).

Footnote 3: The Court recognizes that in certain instances it may be appropriate to conduct an in camera interview of a child in making this assessment however the Court does not find it appropriate here in light of the unequivocal representation expressed by the Attorney for the Children of their position as well as the information in the foster agency reports that the children have expressed a fear of strangers which the Court is concerned could lead to further exposure to trauma for the children.

Footnote 4: While not given consideration at the time of the Court's initial decision on this matter on August 10, 2023, the Court received a written report from the foster agency on September 14, 2023 that further supports its decision. In addition to noting that J.D.E. reported that the foster mom "is the best mom he has ever had", the child reported nightmares that his mother is coming to get him from his home. J.D.E. further disclosed that his sister J.I.E. would cry when she had to use the bathroom after her mother tied her up and that if she could not hold it in, her mother would make her lick her pee. J.D.E. further disclosed that his mother choked him one time causing him to fall asleep and that if he had to return to his mother, he would kill himself and that his mother "should be dead or in prison." In the most recent foster agency report, dated October 18, 2023, J.M.E. is noted to be doing very well and that the foster parent has been utilizing skills learned from the child's therapist. The report further indicates that J.D.E. was observed acting very aggressively one day and when the foster parent calmed him down, he said he had to speak to the case worker "because he knows how his sister died and he needed to share it."