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Respondent is the mother of the two subject children

On 15 February 2008, NYCCS filed petitions against respondent in Kings County Family Court.

The petitions allege that the mother neglected child-one by inflicting excessive corporal punishment upon him; that on 14 February 2008, NYPD responded to a 911 call made from a business near the case address after child-one left the home because his mother beat him with a belt; that child-one reported that the beating took place after his mother learned that he had failed a number of classes; that when child-one tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again; that child-one also reported that his mother had used physical discipline in the past although this time was worse than other times; and that child-two is a derivatively neglected child by virtue of the neglect of child-one.

Subsequently, the court granted the request of NYCCS for a removal of the children and temporarily released them to their maternal aunt; a temporary order of protection was issued against respondent on behalf of the children directing that she refrain from the use of corporal punishment; that the mother have liberal supervised visitation at the aunt’s home.

On 16 February 2008, two days after the incident, the mother enrolled in a number of programs offered by Family Dynamics. She immediately started a 16 week parenting support program and thereafter attended every Saturday from 11:00 AM to 1:00 PM. She never missed a session. She also started a 12 week anger management program which she attended every Saturday from 2 PM to 5 PM. She never missed a session. She started individual counseling and later found her son a therapist as well. She visited the children every day. She did their laundry, made them lunch and had two meals each day with them whenever possible. She checked their homework and was present for all of their doctors’ appointments.

On 17 April 2008, the court granted the mother unsupervised visitation with both children on the consent of NYCCS and the Attorney for the Children. On 25 April 2008, with the consent of all parties, the court changed the children’s status from a temporary release to the maternal aunt to a restrictive remand with the children to reside with a family friend of six years. The maternal aunt had indicated that she was having difficulty transporting the children back and forth from her home in Manhattan to Brooklyn where they attended school and extra-curricular activities. The family friend was a den mother for child-one’s Boy Scout troop and lived close to the children’s school in Brooklyn. She had a separate bedroom in her home for each of the children and agreed to transport them to and from school and their other activities.

On 28 July 2008, the case was transferred to the herein court and, on the consent of NYCCS and the Attorney for the Children, the children were temporarily released to the mother under NYCCS supervision. The following month, she completed the parenting support and anger management programs.

Respondent has moved to dismiss the petitions pursuant to Family Court Act § 1051 (c). The Attorney for the Children strongly supports respondent’s motion which is opposed by NYCCS.

The Issue:

The question here, a three-year-old child protective proceeding, is whether the aid of the court is still required.

The Ruling:

On the Fact-Finding Hearing:

Family Court Act defines a neglected child as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court.

Here, the evidence adduced is sufficient to establish neglect by the mother as to child-one based on her use of excessive corporal punishment. The allegations of derivative neglect have also been established by the requisite quantity of evidence. By inflicting excessive corporal punishment upon child-one, the mother demonstrated a sufficiently flawed understanding of the duties of parenthood to warrant a finding of derivative neglect.

On the Motion to Dismiss Pursuant to Family Court Act § 1051:

The Family Court Act was enacted to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. The statutory scheme is intended to be remedial and not punitive in nature. That purpose is subverted when it is used to punish parents in the name of child protection. Consistent with that purpose, Family Court Act § 1051(c) was enacted requiring the Family Court to dismiss a child protective proceeding even though there is sufficient evidence to support a finding of neglect where the court determines that its aid is not required on the record before it. Although this provision has been contained in the Family Court Act since its initial passage in 1962, such motions are not frequently granted. As a result, there is not a great deal of case law to elucidate its meaning and application. Nevertheless, a review of the limited existing case law establishes that the dispositive issue is whether the facts and circumstances establish that there is a likelihood of present or future neglect. In order to answer that question, the courts have considered a number of overlapping factors, including but not limited to, the nature of the original allegations, whether the underlying problems have been resolved and whether the respondent has complied with and completed all recommended services.

In consideration of several factors in light of the facts at bar leads the Court to conclude that dismissal of the petitions is warranted pursuant to Family Court Act § 1051 (c). The Court is cognizant of the fact that the instant case involves serious and disturbing acts of excessive corporal punishment. Many of the allegations in the petition have been established by a fair preponderance of the credible evidence which included the mother’s testimony. The allegations of derivative neglect have also been established by the requisite quantity of evidence.

Nonetheless, no matter how serious the neglect is if the court concludes that its aid is not required on the record before it, the court shall dismiss the petition. The court, having concluded that there is no basis for continued supervision or for requiring the mother to participate in referrals made by NYCCS, dismissal is mandated by the statute.

Here, three years ago the mother beat her son with a belt. Although it was not the first time, it was the worst and it was the last. She realized that she needed help and she found it. She did not wait for NYCCS to tell her what she needed to do or to make referrals. Instead, two days after the incident, the mother found appropriate service providers and immediately started therapy. Thereafter, she attended services religiously. She completed parenting skills and anger management two-and-one-half years ago. Although individual and family therapy were not included in the service plan, the mother knew that she and child-one needed additional help. She again found appropriate treatment providers; and, two-and-one-half years ago, she and child-one started attending therapy. They have remained in therapy since that time not because NYCCS recommended it or because the court ordered it but because she believed it was helpful.

Clearly, the mother took responsibility for her actions and for the care of her children. When her children were with kinship resources, she visited them almost every day. She did their laundry, reviewed their homework, made them lunch and shared breakfast and dinner with them whenever possible. When caring for the children became difficult for the maternal aunt because of the need to transport them back and forth from Manhattan to Brooklyn, the mother reached out for help. She soon found it in a family friend and den mother for child-one’s Boy Scout troop who was able to ensure that the children remained in their schools and attended their extra-curricular activities.

Two months after the incident, with the support of NYCCS and the Attorney for the Children, the court granted the mother unsupervised visitation. Three months after that, with the support of NYCCS and the Attorney for the Children, the court temporarily released the children to the mother under supervision. There has never been another incident. The mother has never violated the temporary orders of protection that were in place. Since then, she has not used corporal punishment although the order of protection was vacated nine months ago. She has also complied with every other order issued by the Court.

Although the problems in the subject family have not been eliminated, the mother’s ability to address those problems has changed. During the last three years these changes have been repeatedly demonstrated by the mother’s responses to stressful situations involving her son, including his use of internet pornography, stealing money from a family friend and lying to his mother about these events. The mother never resorted to corporal punishment. She had learned not to respond in moments of anger, stress or disappointment. Instead, she gave herself and child-one time to cool off until those feelings subsided. She was then able to talk to him about his behavior and her feelings without blowing up. She learned to rely on the strong support system she built involving members of her family and her church, and she and child-one continued to discuss these difficult issues in therapy.

The children have now been home for an extended period of time and ongoing supervision by NYCCS is no longer necessary to monitor the mother’s conduct, supervise the home or otherwise ensure the Court that the children are being adequately protected. The Court does not question the mother’s commitment to therapy and to doing whatever else may be necessary to ensure that the children’s needs are met. The Court is fully satisfied that the children’s interests are being protected by the mother and that dismissal is in their best interests.

Accordingly, the subject children are released to respondent; the petitions are dismissed pursuant to Family Court Act § 1051 (c).

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