Now pending before the Court is the motion of the attorney for the children ("AFC"), Jonathan Roman, brought by order to show cause, dated May 29, 2013. In this motion, the AFC seeks to restrict the visitation of the respondent-mother, Hannah D., with her children Lucas and Elaina, to be supervised only. On or about April 22, 2013, the court (Hon. Fernando Silva) so-ordered a stipulation that changed Ms. D.'s visits with her children from supervised to unsupervised, but by his motion the AFC requests the Court to restore the status quo ante and limit Ms. D. to supervised contact with the two youngest children.

On May 30, the relevant parties appeared and the AFC sought interim relief identical to the ultimate relief requested in the motion, pending a final determination. Based on the papers he presented and colloquy with counsel, the Court entered the requested interim relief, and adjourned the motion for a contested evidentiary hearing; three-and-a-half hours of time were set aside over two non-consecutive days.^[FN1] Thus as of today's date, Ms. D.'s visits with Lucas (who is almost six) and Elaina (age four) are supervised only. It is the Court's understanding that the visits are supervised exclusively by Ms. D.'s mother, Linda S..

A hearing on the AFC's motion was conducted on June 17 and July 3, 2013. The AFC called Norman Gene D. as a witness and also entered five exhibits into evidence: AFC Ex. 1, a letter dated 4/21/12 (which the parties stipulated was actually intended to be dated 4/21/13); AFC Ex. 2, the marriage certificate of Hannah B. and Norman Gene D., dated 2/14/97; AFC Ex. 3, the internal portion of a greeting card sent by S. B.; AFC Ex. 4, a police incident report from Dutchess County dated 5/3/13, Dutchess Co; and AFC Ex. 5, a letter dated 5/6/13 from Northern Dutchess Day Care Center. Following the completion of Mr. D.'s testimony on July 3, the AFC asked for a continuance. He wished to also call Dr. Jonathan K. (Ms. D.'s co-respondent in the underlying Article 10 proceeding), but had not subpoenaed Dr. K. despite knowing that Dr. K.'s presence had previously been excused from the July 3 date, as Dr. K. is not a party to the AFC's motion. Additionally, the AFC asked for a continuance to obtain medical records of Ms. D.. [*2]The AFC had first indicated a desire to obtain these records on May 30, the first appearance on the motion. However, the AFC did not file the requisite orders to show cause for leave to issue the necessary subpoenas until July 2. Those motions were returnable on July 3, and the Court granted them on that date (with the provisio that the subpoenas be limited in scope to demand records only from the current calendar year), but of course the records were not yet available.

Ms. D.'s counsel opposed the request for a continuance, noting that he was ready to present a case, that the AFC had had ample time to prepare his evidence, and that his client was prejudiced by the interim order. The Court indicated that it had expected the hearing to be completed on the July 3 date; that the Court wished to hear Ms. D.'s evidence; that the Court had no intention of taking time away from the upcoming fact-finding for further consideration of the AFC's motion ^[FN2]; and that the Court wanted to hear argument from counsel on the possible modification of the interim order pending a continuance for the AFC to finish his case.

Thus, with the AFC's consent, on July 3 Ms. D.'s counsel presented his case on the motion out of order, offering the testimony of the ACS caseworker Ms. Valerie Brookshire as well as seven exhibits: Resp. Ex. A, a letter from Linda S. dated 6/11/13; Resp. Ex. B, an ACS report dated 6/11/13; Resp. Ex. C, various documents from St. Francis Hospital including a letter from Stephen Kahn and drug screen results for Ms. D.; Resp. Ex. D, material from Northern Dutchess Hospital regarding Ms. D.'s 5/16/13 visit; Resp. Ex. E, material from Northern Dutchess Hospital regarding Ms. D.'s 5/24/13 visit; Resp. Ex. F, material from Vassar Brothers Medical Center regarding Ms. D.'s 5/26-27/13 visit; and Resp. Ex. G, an ACS report dated 7/1/13. The Court also took judicial notice of two drug tests of Ms. D. conducted by the Bronx Family Treatment Court on June 12 and 17.

Also on July 3, Ms. D.'s counsel gave a summation, and the AFC began his summation, but the Court had to put the matter over to July 9 because closing arguments could not be completed by the required cut-off time of 4:30p.m. On July 9, before the previously-scheduled fact-finding commenced, the AFC completed his summation, and counsel for the petitioner gave her summation. The Court reserved decision.

For the reasons that follow, the Court hereby modifies the interim order on the AFC's motion entered May 30. Pending completion of the hearing and final decision on the motion, the Court finds that it is in the best interests of Lucas and Elaina to have once-per-week unsupervised time with their mother, in addition to a once-weekly visit that is supervised by their grandmother Ms. S. (or other suitable resource, or an agency worker).

Pursuant to Family Court Act § 1030, the Family Court has broad discretion to enter suitable visitation orders in Article 10 proceedings before fact-finding is concluded. F.C.A. § [*3]1030(a); Matter of Jessica F., 7 AD3d 708 (2d Dep't. 2004). The Court may restrict a respondent's time with her children to supervised visits if required by the best interests of the child. F.C.A. § 1030(c); Matter of Kobe D., 97 AD3d 947 (3d Dep't. 2012). The best interests standard is very broad, and its application is necessarily fact-dependent and case-specific. For these reasons, the Court finds it helpful to apply a framework when analyzing each unique family's circumstances.

In February 2013, ACS issued an updated policy governing contact between parents and their children who have been removed from their care due to an Article 10 filing. See Administration for Children's Services, Determining the Least Restrictive Level of Supervision Needed During Visits for Families with Children in Foster Care (Policy and Procedure # 2013/02, Feb. 28, 2013) (hereinafter, "ACS Visiting Policy"). The basic premise of the ACS Visiting Policy, as stated in its summary, is that ACS "should seek to arrange unsupervised visits between a parent and a child in foster care whenever there is no safety reason to support supervision."^[FN3] More specifically, the policy provides that "Visits must be unsupervised unless one or more of the following conditions exist:"

There is a court order for supervised visits. . .

There is a reasonable basis to believe that the child may be at serious risk of physical and/or emotional harm or injury.

There is a reasonable basis to believe that the parent may attempt to influence, interfere with, manipulate, or coerce the child's potential testimony in court.

It has been determined that the parent may abscond with the child.

In the presence of the child, a parent displays explosive, emotionally uncontrolled behavior toward agency staff or the foster parent.

(ACS Visiting Policy at 5.)

Based on the record adduced at the motion hearing thus far, the only one of the foregoing provisions that could apply in this case is (b), that there is a reasonable basis to believe that Lucas or Elaina would be at serious risk of harm should they have unsupervised contact with Ms. D. The hearing itself concerns the entry of a court order, making (a) immaterial. Lucas and Elaina are both under the age of 6 and neither appears on any party's witness list for trial, so (c) is also irrelevant. There was no evidence that either (d) or (e) would be applicable in this case.

The main allegation in the Article 10 petition against Ms. D. is that she abuses prescription drugs and (at the time of filing) was not engaged in a drug treatment program. The gravamen of the AFC's motion to restrict her contact with the children to supervised visits is that, despite being in a program currently, she continues engage in "drug seeking" and is misusing prescription medications.

The evidence in the hearing thus far belies the AFC's contention. Ms. D.'s counsel entered into evidence various documents demonstrating that she is both fully engaged in her substance abuse program and is testing negative for all substances. For example, Resp. Ex. C contains a report (dated May 31, 2013) from her counselor at the St. Francis Hospital outpatient drug treatment program, Stephen Kahn. Mr. Kahn states that Ms. D. has been enrolled in the program since October 30, 2012, has been on time for all sessions, and is fully engaged in therapy. In this Court's experience, when a drug addicted parent has been consistently attending a substance abuse program for seven months and is meaningfully participating — not just being marked "present" but actually engaging and working on her issues — it typically means the case can move towards unsupervised visits.

Indeed, the Court understands that it is because of Ms. D.'s sincere commitment to drug rehabilitation and her growing track record of compliance that all parties, including the AFC, consented to an order allowing unsupervised visits at the end of April. Developments since that order went into effect, as opposed to evidence that preceded it, are most relevant to assessing the AFC's current request. As to the period between late April and present day, the evidence establishes no reasonable basis to believe the children are at risk of harm from unsupervised visits.

The report of Ms. S. is instructive on this point. Ms. S. supervised Ms. D.'s visits for over a year. Even after the April order permitting unsupervised visits went into effect, Ms. S. still attended the visits once a week, because Ms. D. generally sees the children jointly with Dr. K. on Saturdays, and Dr. K.'s visits must be supervised by Ms. S.. Ms. S. reported that after the unsupervised contact with their mother began, "I saw no notable difference in the children's moods that might make me believe that the [unsupervised] visits were not going well. They did not complain to me of anything and the tone and pace of the Saturday visits went on the same as it always had." (Resp. Ex. A.) In his testimony at the hearing, Mr. D. — who evidently believes the children are at risk to have unsupervised contact with their mother — did not voice any concerns that Ms. S. might be biased in her reporting because she is Ms. D.'s mother. He agreed that he trusts Ms. S. as a supervisor; that if Ms. D. were endangering the children, Ms. S. would step in; and that he has no reason to suspect that Ms. S. would put her daughter's legal interests above the safety of her grandchildren. Similarly, the Court has no reason to doubt the credibility of Resp. Ex. A. The AFC has not called Ms. S. as an adverse witness to challenge her statements in this letter.

A critical issue in this motion is whether Ms. D. is currently using prescription drugs of any kind. The drug test results indicate that, with one exception, she is not. Testing done by St. Francis (Resp. Ex. C), shows negative results for all substances on December 28, 2012; January [*4]4, 2013; February 8, 2013; and April 30, 2013. Additionally, Ms. D. tested negative for all substances at the Bronx Family Treatment Court facility on June 12 and June 17.

The AFC focuses on a positive test for opiates on March 15, 2013 (Resp. Ex. C) and other evidence that he says shows that Ms. D. is "drug seeking." It is true that Ms. D. received medical attention from two different hospitals on three different occasions in May. (Resp. Ex.'s D-F.) However, the conditions for which Ms. D. evidently received treatment seem quite serious and appear to be related to a history of kidney problems. On May 16, she was treated at Northern Dutchess Hospital for hydronephrosis (kidney cysts) and stricture or kinking of the ureter, among other problems. (Resp. Ex. D.) On May 24, she was treated at the same hospital for renal colic (kidney pain), related to a stent that had been previously placed in her urethra. (Resp. Ex. E.) On May 27, she was seen at Vassar Brothers Medical Center for pyelonephritis (kidney infection).

Mr. Kahn states in his report that he has been aware of the occasions on which Ms. D. had been prescribed pain medication while enrolled in his program. He notes that

[S]he has had 2 major surgeries and two emergency surgeries and severe complications and infections from same. During each of these incidents, I have been involved in the management of the patient's medication. . .I believe that Hannah has remained sober and only used [prescribed pain] medication responsibly and as prescribed throughout this time period. I do not believe that she is drug seeking in any way.

(Resp. Ex. C.)

The AFC has presented no evidence that Ms. D. is malingering or self-injuring and has offered nothing to contradict Mr. Kahn's assessment, which the Court deems reliable in the absence of the AFC calling him as an adverse witness for cross-examination. The only evidence that might cast doubt on Mr. Kahn's conclusion is the testimony of Mr. D., who reported that during his long marriage to Ms. D., he observed her self-injure and take other extreme steps to obtain pain medication. For example, Mr. D. testified that Ms. D. asked their oldest child to jump on her foot and asked her husband to hit her, just so she could have an excuse to go to the doctor. He also saw her kick the toilet with her ankle three times for the same purpose. Critically, however, Mr. D. stated that these incidents occurred "about five or six years ago." The Court has no reason to doubt Mr. D.'s testimony on this issue, but because his observations are dated, they do not undermine the strength of the current information from a substance abuse professional who is closely involved in Ms. D.'s treatment and has concluded that she is not currently drug seeking. Mr. D.'s testimony that on May 25 when he spoke to Ms. D. on the telephone while she was in the hospital her voice sounded "funny" and "off" does not establish that she was misusing prescription drugs during the unsupervised visits or would do so.

The other evidence and arguments presented by the AFC do not lead to a reasonable belief that the children would be at serious risk of physical or emotional harm to have unsupervised visits with their mother. Mr. D. testified that until the unsupervised visits began in late April, the supervised visits generally went well, except that he noticed that the children were [*5]usually cranky the next day and confused, because they wanted to spend more time with their mother. Additionally, Mr. D. testified that Elaina's day care providers could tell when Elaina had visited her mother the prior afternoon, as she would be moody, tearful, and irritable. This was corroborated by a letter from the day care. (AFC Ex. 5.) However, despite this, the parties consented to permit Ms. D. to have unsupervised time in late April, so it is unclear how this evidence of the children's behavior before unsupervised visits began is relevant to the instant motion.

Mr. D. did testify about two incidents that occurred during the period of unsupervised visits. In one incident, Ms. D. is said to have yelled at Elaina during an evening telephone call. The child (age four) was tired and cranky and did not want to speak to her mother. Mr. D. testified credibly that he could hear Ms. D. screaming through the phone that Elaina would be punished if she would not speak to her mother. This sort of behavior is of course not helpful for the child or anyone, but neither alone nor in connection with the other evidence adduced in support of the AFC's motion does this information create a reasonable basis to believe that Elaina or Lucas would be at serious risk of harm or injury to have unsupervised visits.

Mr. D. testified credibly about another incident following an unsupervised visit. The children (Lucas and Elaina and their older brother Matthew) got into his car after seeing their mother and proceeded to yell at him for 20 minutes, asserting that Mr. D.'s "lies" are preventing Ms. D. from having her parental rights restored. Again, this issue, while concerning, does not support a finding that the children are at serious risk of harm or injury to see their mother in an unsupervised setting.

Another complaint raised by Mr. D. in his testimony concerned the way Ms. D. handled the transition to unsupervised visits in April. According to Mr. D.'s credible testimony, even though the decision of the parties and the court at that time was for Ms. D. to begin seeing the children without supervision, Elaina, Lucas, and Matthew (who is 12) got into his car after a visit with their mother and all reported that they were going home imminently. He noted that Elaina got very distraught after about 10 minutes of chatter about this topic, stating that she did not want to live with her mother. He added that for the next two weeks, she would sob and reiterate that she did not want to live with mommy, and it seemed to him that she was thinking about this a lot during that period and that it made her upset.

While it does seem that Ms. D. could have handled these episodes more maturely and appropriately, these three incidents are more in keeping with what courts in the matrimonial division or custody parts of Family Court typically see. In a § 1030 proceeding, these incidents can be dealt with through less restrictive means than limiting the parent to supervised visits only. Specifically, the Court can direct the respondent to refrain from discussing this case; custody or visitation arrangements; or any legal matter with the children or with other adults in the children's presence. As to the telephone contact issue, while New York is a one-party wiretapping consent state, Penal Law §§ 250.00(1); 250.05, the Court can direct Ms. D. to execute a written consent to have Mr. D. tape record any or all telephone calls she may have with the children while they are in his care. [*6]

The AFC argues that the so-ordered stipulation permitting Ms. D. to have unsupervised time with the children that was entered in April was obtained fraudulently. He asserts that a letter from Ms. D.'s sister, S.B., submitted by Ms. D. in support of her application for unsupervised visits at that time (AFC Ex. 1) was, in fact, authored and signed by Ms. D.. As a factual matter, the AFC appears to be correct, that Ms. D. both typed the letter and signed her sister's name. The Court need not engage in handwriting analysis to come to this conclusion ^[FN4], because Mr. D.'s credible testimony establishes the point. Mr. D. testified that he asked Ms. B. about the letter, and she admitted to him that Ms. D. prepared it and signed her sister's name.

However, Mr. D. also noted that Ms. B. approved the content of the letter. Thus, as a substantive matter, the information the letter conveyed — essentially, that those visits between Ms. D. and the children that Ms. B. had supervised went very well, and that Ms. D. displayed excellent parenting skills — was accurate, at least as far as Ms. B. was concerned. Certainly Ms. D. erred in judgment by not disclosing that she had prepared the letter with her sister's approval. Certainly this Court would not have been pleased to learn that a decision it had rendered was based in part on such a letter. But it does not mean that the information was unreliable or insufficient to support the application for unsupervised visits that was made at the time the letter was submitted, and it does not mean that the children would be at risk to have unsupervised time with their mother re-established now.

Finally, it should be noted that even though ACS supports the AFC's motion and opposes Ms. D.'s application to revoke or modify the interim order of May 30, neither the testimony of Ms. Brookshire nor the ACS reports in evidence (Resp. Ex.'s B and G) provide facts tending to establish a reasonable basis to believe that the children would be at risk should they have unsupervised time with their mother. In both of its reports, ACS notes that Ms. S. has reported no concerns regarding Ms. D.'s interactions with Elaina.

Before completing his argument on July 9 opposing Ms. D.'s application for a modification of the May 30 interim order, the AFC made a proffer of additional evidence that he intends to introduce at the motion hearing. Specifically, he stated that instead of calling Dr. K. as an additional witness, he would be calling Ms. D.'s sister, Ms. B. He stated that Ms. B. would testify that she saw Ms. D. take a tablet of what she believed to be illegal drugs and place it on her tongue, and that Ms. D. then became "high as a kite." If Ms. B. does testify credibly in this regard, it certainly could be persuasive evidence in support of the AFC's motion. However, there is reason to doubt Ms. B.'s anticipated testimony, because the record indicates that she and her sister had a dispute (see AFC Ex. 4) that led to Ms. D. evicting Ms. B. from her home. Thus, the Court will have to make a credibility determination and cannot base its interim decision on the proffer, especially considering that the AFC had ample time to prepare his case and did not have Ms. B. available at either date set aside for the motion hearing. [*7]

After the arguments of July 9, the Court did schedule further time for the continued motion hearing, on August 22. (Meanwhile, the Court has turned its attention to the fact-finding, which is proceeding apace and has several dates scheduled in July.) The AFC is free to present Ms. B.'s testimony then, and/or whatever other evidence he wishes. In the meantime, however, the Court has determined that it would be in the best interests of Lucas and Elaina to have some unsupervised time with their mother.

For the foregoing reasons, IT IS HEREBY ORDERED:

Pending completion of the motion hearing (MOT SEQ # 15), and effective the week of July 15, 2013, Ms. Hannah D. shall have once-per-week unsupervised parenting time with Lucas and Elaina, in addition to a supervised visit once-per-week, on the following conditions. Ms. D. is to:

Maintain her enrollment in her current MICA program and remain compliant with all aspects of it.

Submit to random drug testing (to be arranged by her MICA program or ACS) to occur a minimum of five times per month, and test negative for all substances, including amphetamines, opiates and benzodiazepine.

Provide notice to ACS (through counsel or directly to the assigned ACS worker) within 24 hours of any medical treatment which results in the provision of any medication, whether over-the-counter or prescription, and details of such treatment and medication. ACS is to in turn notify the attorney for the children of the information.

Refrain from discussing this case; custody or visitation arrangements; or any legal matter with the children or with other adults in the children's presence.

Execute a written consent for all her telephone calls to the children while they are at Mr. D.'s home to be audiotaped by Mr. D.

Refrain from bringing the children to her residence until ACS clears all adults who reside there, whether tenants or guests.

Provide names, dates of birth, and other information ACS may require to ACS concerning any future tenants or adult residents or overnight guests at the residence where she wishes to bring the children.

This order shall modify the order of May 30, 2013, on Motion # 15.

Dated: July ___, 2013ENTER [*8]

_____________________________________

Hon.Erik S. Pitchal