In re Araynah B.
OPINION OF THE COURT
In this postdispositional Family Court Act article 10 proceeding, respondent mother has moved to modify the dispositional order previously entered against her on consent and for the entry of a suspended judgment. She has also moved to vacate the initial finding of neglect entered against her on consent pursuant to Family Court Act § 1051. The motions are supported by the Attorney for the Children and opposed by New York City Children’s Services (NYCCS). For the reasons set forth herein the motions are granted.
Procedural History
On June 11, 2008, NYCCS filed petitions against respondent mother alleging that the subject children were neglected children pursuant to Family Court Act § 1012 (f) (i) (b).
On March 9, 2009, respondent waived her right to a fact-finding hearing and consented to a finding of neglect being
On July 16, 2009, respondent waived her right to a dispositional hearing and consented to a dispositional order. That order released the children to respondent under six months’ NYCCS supervision on the condition that she cooperate with announced and unannounced visits, submit to random urine screens, cooperate with drug treatment, ensure that Araynah attend school regularly and on time, complete a parenting skills course, maintain a safe and sanitary home, make appropriate child care arrangements, utilize only child care providers cleared through the New York State Central Register and not leave the children alone with Trevor T.
During the months that followed, respondent complied with the provisions of the dispositional order. She also continued to attend school and search for a job.
By notice of motion dated December 24, 2009, and returnable on January 6, 2010, respondent moved pursuant to Family Court Act § 1052 (a), §§ 1055 and 1061 to modify the dispositional order and suspend judgment effective January 15, 2010. In support of her motion, respondent submitted an affidavit in which she described her compliance with the provisions of the dispositional order and service plan. She asserted that she was attending college and searching for a job. She indicated that she hoped to find a job working for the Board of Education. She asserted that a suspended judgment would greatly increase her chances of obtaining employment by the Board of Education since it would facilitate her efforts to amend her New York State Central Register record. This, she asserted, would be in the children’s best interests since it would enable her “to support [them] more easily and steadily.”
Respondent asserted that her motion should be granted without a hearing. She contended that a hearing was unnecessary because NYCCS did not deny that she had complied with all aspects of her service plan.
The Attorney for the Children submitted no papers in support of or opposition to the motion. Nevertheless, she orally indicated that she supported the motion for a suspended judgment.
By order and decision dated January 12, 2010, respondent’s motion was denied. That decision was based on a number of factors. First, the court concluded that the relief requested by respondent could not be granted without either the consent of the parties or a hearing. Second, because the period of supervision was scheduled to conclude within three days, the hearing could not be concluded until after the dispositional period had expired, supervision had ended and the court no longer had jurisdiction over the family. Third, respondent failed to allege any changed circumstances or other factual basis to support a finding of “good cause” and warrant a new hearing to consider modification of the original dispositional order that had recently been entered on consent. Fourth, the court concluded that the purpose of a suspended judgment — to provide a parent with a second chance and a brief grace period to meaningfully address the problems that led to the original finding during a period of ongoing monitoring and supervision — was best served if it were ordered toward the beginning of the dispositional period, rather than after its conclusion. Finally, the court questioned whether the statutory provisions authorized the entry of a suspended judgment simultaneously with a dismissal after the expiration of the original period of supervision.
Respondent appealed and by decision and order of the Appellate Division, Second Department, dated March 16, 2011, the order denying respondent’s motion was reversed (Matter of Araynnah B. [Moshammet R.],
Thereafter, on July 13, 2011, respondent filed an order to show cause seeking to vacate the original finding of neglect. Respondent asserted that even if the court granted the suspended judgment and dismissed the petition at the end of the suspended judgment period, the finding of neglect would remain unless the court entered an order of dismissal explicitly vacating it. In support of the motion respondent cited Matter of Crystal S. (Elaine S.) (
Thereafter, on July 22, 2011, the court conducted a hearing pursuant to Family Court Act § 1061 to determine whether to modify the dispositional order, enter a suspended judgment and/or whether to vacate the finding of neglect. At the hearing, respondent testified on her own behalf and submitted numerous documents into evidence. NYCCS called no witnesses and introduced no documentary evidence.
Respondent testified that she had obtained a high school general equivalency diploma. She further testified that, in August 2008, she began attending the Borough of Manhattan Community College to pursue an Associate’s degree in human services and social work. She testified that prior to obtaining her diploma she was forced to take a leave of absence when Amir became ill due to his asthma. She testified that she needed approximately 20 credits in order to obtain her degree. Respondent further testified that she did not have the financial resources to pay for school and that she has been unable to obtain employment as a teaching assistant because of the finding of neglect that was entered against her.
Respondent testified that both children were doing very well. She testified that Araynah was attending a charter school and that she had an overall “B” average but that she had an “A” average in science. Respondent testified that Amir was attending public school and that he was also doing well academically. She further testified that she had ensured that both children had been attending school regularly and on time. Respondent further testified that she had served as the vice-president of the Parent Teacher Association (PTA) at Amir’s school and had also volunteered on school trips, in classrooms and in the school cafeteria.
In addition, respondent introduced the following documents into evidence: Araynah’s report card for the 2010-2011 school year (respondent’s exhibit No. 1 in evidence); Araynah’s honor student certificate for the third quarter of the 2010-2011 school year (respondent’s exhibit No. 2 in evidence); Amir’s science award dated June 22, 2011 (respondent’s exhibit No. 3 in evidence); respondent’s award for the completion of the alcoholism treatment program at Cumberland Diagnostic and Treatment
NYCCS failed to present any testimony or documentary evidence. During summation, counsel asserted that the relief requested by respondent should be denied and that the finding of neglect should not be vacated, given that the underlying allegations were of “such a serious nature.”
Legal Analysis
1. Modification of the Dispositional Order to Grant a Suspended Judgment
Article 10 of 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” (Commissioner of Social Servs. [Maria M.],
Consistent with that purpose Family Court Act § 1061 was enacted granting the Family Court extremely broad authority to “stay execution, of arrest, set aside, modify or vacate any order issued in the course of a proceeding under this article” including a prior fact-finding or dispositional order based on “good cause shown and after due notice” (Matter of Araynnah B. [Moshammet R.],
Family Court Act § 1061 “expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the children] and family so that the court can do what is necessary in the furtherance of the child[ren]’s welfare” (Matter of Ange
A dispositional order can be modified upon a showing of “good cause” as long as it “reflect[s] a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances, and [is] supported by a sound and substantial basis in the record” (Matter of Kenneth QQ. [Jodi QQJ,
A suspended judgment is considered the least restrictive dispositional alternative. Family Court Act § 1053 provides that the rules of court shall define the permissible terms and conditions of a suspended judgment. The rules require that the terms of such a judgment relate to the adjudicated acts or omissions of respondent and contain at least one of the enumerated terms.
When a suspended judgment is imposed the Family Court retains jurisdiction to consider a motion to enforce, modify, or vacate it at any time, upon a proper factual showing of compliance or noncompliance with its terms and conditions (Matter of Jonathan B.,
Although the Family Court Act has included a suspended judgment as a permissible dispositional alternative since at least 1970, such judgments are not often granted. The statute and the rules of court are silent about what factors the court is to consider in determining whether to grant a suspended judg
Nevertheless, the purpose of a dispositional hearing is to determine which statutory alternative is in the best interests of the children and a review of the limited existing case law establishes that this issue should be evaluated in light of the following factors: (1) respondent’s prior child protective history; (2) the seriousness of the offense; (3) respondent’s remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court-ordered services and treatment (Matter of MN,
Each of these factors is considered separately below.
Respondent’s Prior Child Protective History
The first factor is respondent’s prior history of child maltreatment. In the instant case, respondent has no prior findings of child abuse or neglect. Additionally, according to reports previously submitted by NYCCS respondent has had no prior reports of suspected child maltreatment made against her.
The Seriousness of the Offense
The second factor is the “seriousness” of the underlying acts of misconduct. It goes without saying that any case involving allegations of child abuse or neglect is a “serious case.” Nevertheless, “seriousness” exists along a continuum and the courts have considered the magnitude of the underlying misconduct in determining numerous issues in child protective proceedings. For example, the nature and duration of the underlying misconduct has been considered in evaluating allegations of derivative neglect, e.g., whether a parent continues to present a risk of harm to other children in the home. In this context, the courts have considered physical and sexual abuse, as well as repeated acts of excessive corporal punishment to be the most “serious” cases (see e.g. Matter of Christopher W.,
The courts have also considered the nature and relative severity of the underlying acts of abuse or neglect when evaluating motions to dismiss based on assertions that the aid of the court is no longer required under Family Court Act § 1051 (c) (see e.g. Matter of Eustace B. [Shondella M.],
Having considered the prior case law addressing the magnitude of the underlying misconduct in other contexts during child protective proceedings, the court finds that the issue is sufficiently similar to apply that case law to the issue presented here. Viewing the standards established in those cases in light of the facts at bar, the court concludes that the nature and duration of the underlying neglect are not of sufficient magnitude to defeat respondent’s motion. In this case, the underlying allegations involved educational neglect, leaving the children home without adult supervision and the prior use of marijuana. Respondent has acknowledged her actions placed the children at risk of impairment; however, there has been no showing that her actions resulted in any actual physical, mental or emotional harm to either one of them.
Moreover, although NYCCS insists that the “seriousness” of the underlying allegations requires that the motion for a suspended judgment be denied, they have cited no case or statutory authority in support of that proposition; nor have they articulated which allegations they consider the most serious or the factors they considered in evaluating the relative seriousness of the underlying acts of misconduct.
Finally, although NYCCS insisted that there were numerous disputed issues of fact that could only be resolved at a hearing, during the hearing they failed to present any evidence whatsoever. Additionally, the documentation they previously submitted fails to support the claim that respondent’s actions were especially serious. In terms of respondent’s prior substance abuse, NYCCS has repeatedly reported that she has tested negative for drugs each and every time she was randomly tested since July 2008. In terms of leaving the children home alone, according to prior reports from NYCCS, respondent left the children alone on one occasion for approximately two hours while she went down the block. In terms of the educational neglect, NYCCS of
Respondent’s Remorse and Acknowledgment of the Neglectful Nature of Her Acts
The third factor is the parent’s remorse and acknowledgment of the neglectful nature of her actions (Matter of Amber D.C. [Angelica C.],
In this case, the respondent acknowledged her role and willingly and expeditiously took steps designed to overcome the problems that led to the filing of the petitions including the successful completion of all services offered to her. Additionally, respondent waived her right to a fact-finding hearing and allocuted to a finding pursuant to Family Court Act § 1051 (a). She also waived her right to a dispositional hearing and the dispositional order was entered on consent. Further, respondent actively planned for her future with the children by attending college and continuing to seek employment. This has allowed her to serve as a more positive role model. It has also opened the door to new employment opportunities which could enhance her ability to provide for the children’s material and other needs.
Respondent’s Compliance with Court-Ordered Services and Treatment and Efforts Toward Rehabilitation
The fourth factor is respondent’s compliance with court-ordered services (Matter of Zachary CC.,
In the instant case it is undisputed that respondent fully complied with all of the terms and conditions of the original dispositional order in a timely manner. NYCCS never filed a violation petition nor sought an extension of that order. NYCCS offered no evidence to rebut respondent’s testimony that she had participated in and completed all recommended programs and services. NYCCS did not deny that respondent also engaged in additional programs voluntarily. In fact, although NYCCS insisted that a hearing was necessary since respondent’s motions involved numerous contested issues of fact, they failed to offer even a shred of evidence in support of that claim.
Additionally, the evidence establishes that respondent stopped using marijuana immediately after the filing of the petition. She completed a parenting skills course, which she found and paid for on her own. She completed a drug treatment program, submitted to random urine screenings and tested negative each and every time. She submitted to a mental health evaluation, engaged in individual counseling and voluntarily attended anger management classes. She volunteered at her children’s schools and actively pursued her own education with the hope of obtaining employment with the Board of Education. She ensured that
Further, respondent fully cooperated with NYCCS supervision. There was never even an allegation — let alone evidence establishing — that respondent violated any provision of any court order or failed to cooperate with any aspect of the service plan.
In other words respondent successfully overcame the problems that led to the original filing of the petition. Having considered respondent’s prior history, the seriousness of the underlying neglect, the acknowledgment of the neglectful nature of her actions and her compliance with court-ordered services and treatment, the evidence establishes good cause to modify the prior dispositional order. In addition, as respondent and the Attorney for the Children have asserted suspending judgment will serve the children’s interests since it may enable respondent to work and to qualify for better paying and more gratifying employment. This would be in the best interests of the children since it would enable respondent to provide the children with a more positive role model and to provide them with numerous material advantages. In addition, respondent asserts that the stigma created by the findings would affect her in future legal matters. She also asserts that since she successfully addressed the problems that led to the initial finding the public interest in preserving the findings no longer exists.
The purpose of a suspended judgment is to provide a parent with a second chance where the court determines it is in the children’s best interests. It allows a parent a brief grace period to meaningfully address the problems that led to the underlying finding of abuse or neglect. In this case, respondent has meaningfully addressed and overcome the problems that led to the original finding. Her children are thriving in her care.
NYCCS disagrees insisting that respondent’s claims are speculative and based on numerous unchallenged assumptions. In addition, NYCCS contends that all of the parties’ interests would be best served by denying the motion and allowing the finding to remain as it is. Nevertheless, when specifically asked
NYCCS emphasizes that even if a suspended judgment were entered and the neglect petitions were dismissed, this would not remove respondent’s name from the New York State Central Register and, therefore, could still bar her from certain future employment opportunities. In this regard NYCCS is correct. Respondent may fail when she attempts to challenge the report that has been indicated against her. Respondent may never complete college. She may never get the job she wants. Nevertheless, dismissal of the neglect petition would at least allow her the opportunity to seek expungement of the report — an option unavailable if the finding remains (see McReynolds v City of New York,
2. Motion to Dismiss and Vacate the Finding
Where a respondent fully complies with the terms and conditions of a suspended judgment the petition can be dismissed and the finding vacated at the conclusion of the suspended judgment period if that result is in the children’s best interests (Matter of MN,
Family Court Act § 1061 explicitly grants the court the authority to vacate any order issued in the course of an article 10 proceeding based on good cause shown where it is in the best interests of the children to do so (Matter of Saboor C.,
In the instant case, it is undisputed that respondent fully complied with the terms of the dispositional order. There was never a request to extend supervision. There was never an allegation — let alone competent proof — that she failed to comply in any respect. There is no need for the aid of NYCCS or this court. Granting a suspended judgment, dismissing the petition and vacating the finding would be in the best interests of the children.
Accordingly, it is hereby ordered, that respondent’s motion to modify the dispositional order is granted and a suspended judgment is entered; and it is further ordered, that respondent’s motion to dismiss the petitions is granted since she has successfully completed the terms and conditions of the suspended judg
Notes
. The petitions alleged that respondent mother failed to provide the children with proper supervision and guardianship. Specifically, the petitions alleged that the children were found home alone. The petitions also alleged that the home was dirty and that there was garbage on the floor. The petitions further alleged that there was inadequate food and no sheets on the children’s beds. It was also alleged that respondent misused marijuana, that she had been smoking two “blunts” every day for three months and that she was not in a drug treatment program. In addition, the petitions alleged that respondent failed to provide an adequate education for Araynah who was absent 40 times and late 61 times during the last school year.
. Family Court Act § 1051 (a) provides, in relevant part, that if all parties and the attorney for the child consent, the court shall enter an order finding that the child is an abused child or a neglected child and shall state the grounds for the finding.
. Mr. T. was respondent mother’s paramour. He was arrested on July 3, 2009 and pleaded guilty to criminal possession of marijuana in the fifth degree. He was sentenced to a conditional discharge for a period of one year, two days of community service and a license suspension for six months.
. In that case the Family Court made a finding of neglect against a respondent mother. The subject child and the mother’s boyfriend had engaged in a physical altercation and the mother had intervened. In so doing she came between her boyfriend and the child and held the child’s arms to prevent her from reaching for a knife, which the mother admitted might have caused swelling and a scratch on the child’s arm. At the conclusion of the hearing, the Family Court found that the child was “out of control” and “consistently disobeyed the rules of the home set down by the mother” (id. at 824). Nevertheless, based upon the mother’s admission that she held the child “very hard,” resulting in an injury to the child’s arm, the Family Court found that the mother failed to provide adequate care and guardianship and that she had neglected her daughter (id.). The Family Court suspended judgment for 12 months and directed the mother to cooperate with monthly NYCCS supervision and to participate in family therapy with the child. At the end of the 12-month period the court dismissed the neglect petition against the mother with prejudice. The Appellate Division, Second Department reversed and vacated the finding of neglect. The Court found that the mother’s use of physical force had been justified to stop the child from escalating the altercation and grabbing a knife. In reaching that determination the Appellate Division rejected the assertion that the appeal had been rendered moot since the petition had been dismissed. The Court noted that although the Family Court dismissed the petition at the end of the suspended judgment period, the finding of neglect remained since the order of dismissal failed to explicitly vacate it.
. 22 NYCRR 205.83 provides that a suspended judgment must direct a respondent to do one or more of the following:
“(1) refrain from or eliminate specified acts or conditions found at the fact-finding hearing to constitute or to have caused neglect or abuse;
“(2) provide adequate and proper food, housing, clothing, medical care, and for the other needs of the child;
“(3) provide proper care and supervision to the child and cooperate in obtaining, accepting or allowing medical or psychiatric diagnosis or treatment, alcoholism or drug abuse treatment, counseling or child guidance services for the child;
“(4) take proper steps to insure the child’s regular attendance at school; and
“(5) cooperate in obtaining and accepting medical treatment, psychiatric diagnosis and treatment, alcoholism or drug abuse treatment, employment or counseling services, or child guidance, and permit a child protective agency to obtain information from any person or agency from whom the respondent or the child is receiving or was directed to receive treatment or counseling.”
. To establish educational neglect NYCCS must establish a “significant, unexcused absentee rate that has a detrimental effect on the child’s education” (Matter of Ember R.,
. The only other practical difference between a suspended judgment and an order of supervision is the penalty for failing to cooperate. A violation of an order of supervision may be punished by a term of incarceration while the violation of a suspended judgment may result in the issuance of a new order of disposition and a change in custody of the child (see e.g. Matter of Elizabeth T.,