The issue before the court in these proceedings under Article 10 and Article 6 of the Family Court Act (hereinafter F.C.A.) is which disposition is in the best interests of the subject child Schmuel C., age 14. Levy C., the non respondent father, a resident of Israel, seeks a final order of custody. The Administration for Children's Services (hereinafter ACS) argues that an order placing Schmuel with ACS up until the completion of the next permanency hearing is in the child's best interests. The Attorney for the Child supports the non respondent father's custody petition.

Under F.C.A. §1055-b, the court has the authority to enter an order of disposition granting custody of the child to a relative under Article 6 if custody is in the best interests of the child and the safety of the child will not be jeopardized if the respondent is no longer under the supervision or receiving services. The court must further find that granting custody will provide the child with a safe and permanent home. After a full consolidated disposition and custody hearing, the court finds that the disposition of placement with ACS is in Schmuel's best interests [*2]and the custody petition of the non respondent father is denied. Preliminarily, the court notes that the respondent mother is not a discharge resource for the child. This court entered a finding of sexual abuse against the respondent mother. Based on her actions towards Schmuel, the respondent mother was also convicted of Attempted Course of Sexual Conduct Against a Child in the First Degree, a class C violent felony, in criminal court and is serving a prison term of 3 ½ years. The criminal court also issued a full stay away 10 year Order of Protection against the respondent mother on behalf of Schmuel in effect until June 2023. The respondent mother is not permitted any contact with the subject child whatsoever.

ACS presented the testimony of Ohel case planner, Talia Warmflash. Ms. Warmflash credibly testified that Schmuel was initially placed in a foster home when he first entered foster care, however he exhibited severe behavioral difficulties and was moved to another placement. Ms. Warmflash stated that Schmuel was emotionally disregulated, having tantrums, and that at one point he was psychiatrically hospitalized for threatening to harm himself and his foster mother. There was another instance where Schmuel touched another child inappropriately on her genitals. On December 16, 2012, Schmuel was transferred to JCCA's Edenwald Residential Treatment Center (hereinafter Edenwald), where he remains today. She further testified that Mr. C. resides in Eilat, Israel and has not maintained consistent contact with the agency although he did come for Schmuel's Bar Mitzvah in January. She further testified that Mr. C. is not in family counseling or individual psychotherapy, and has not entered or completed parenting skills training as recommended by the agency. Ms. Warmflash further stated that Mr. C. participated by phone in one of Schmuel's treatment conferences but seemed to have limited understanding of Schmuel's heightened needs.

ACS also presented the testimony of Kate Harvey, Schmuel's social worker at Edenwald. Ms. Harvey stated that Schmuel suffers from Post Traumatic Stress Disorder as a result of the sexual abuse that he endured while in his mother's care, and is also diagnosed with mild mental retardation. While at Edenwald, Schmuel receives individual and group counseling, special education services at the school, and recreational services. He is also prescribed Prozac. She further testified that while the non respondent father was in New York, he was visiting with Schmuel every other Sunday supervised by Schmuel's resident supervisor. However, Mr. C. moved back to Israel in mid-March 2013, and he did not have any visits with Schmuel from March-August 2013. Furthermore, Ms. Harvey testified that after Mr. C. moved back to Israel, he did initially keep in touch with Schmuel via telephone, but that ended about 3 weeks after he moved. Ms. Harvey stated that she has spoken to the father about Schmuel's needs and the reason why he is at Edenwald, but he has not kept in touch with her regularly about Schmuel's treatment plan. Furthermore, she did not have contact with Mr. C. from March 2013 until August 7, 2013, when he called Ms. Harvey saying that he was waiting for a flight to get to the court hearing scheduled for August 8, 2013. Ms. Harvey stated that she has had discussions with Mr. C. about the importance of maintaining consistent contact with Schmuel, and how he needs family and support and consistency in his life. Ms. Harvey also testified that Mr. C. has not been in touch with school staff regarding Schmuel's education, and he has not been in touch with Schmuel's doctors about his mental health treatment. After Mr. C. returned to Israel, Ms. Harvey [*3]made approximately 5 outreach attempts to Mr. C. so that she could let him know about how his son is doing, however she was not able to reach him.

In addition to the testimony of Ms. Warmflash and Ms. Harvey, ACS offered the following documentary evidence in support of their recommendation of placement with ACS: An Ohel report dated 4/23/13 from Ms. Warmflash (Petitioner's 1); mental health evaluation of Mr. C. dated 2/13/13 from the Kings County Family Court Mental Health Services clinic (hereinafter MHS) (Petitioner's 2); Ohel report dated 7/30/13 from Ms. Warmflash (Petitioner's 3); JCCA report dated 8/7/13 from Ms. Harvey at Edenwald (Petitioner's 4); Schmuel's permanency hearing report (Petitioner's 7); JCCA report dated 11/15/13 from Ms. Trabuco (Petitioner's 8); Initial Psychiatric Note dated 12/21/12 (Petitioner's 9); JCCA report dated 5/1/13 from Ms. Harvey (Petitioner's 10), and Ohel report dated 11/21/13 (Petitioner's 11). According to Petitioner's 1, Ms. Warmflash provided Mr. C. with a copy of the service plan in March 2013 and then reached out to him in April and was informed that Mr. C. had located a psychiatrist. The MHS evaluation outlines multiple concerns regarding Mr. C.'s own mental health status and his ability to meet Schmuel's needs. With regards to Mr. C.'s parenting capacity, Dr. Samantha Johnston noted that he lacked knowledge regarding Schmuel's current functioning and needs and the reason for his being in a residential setting.

Furthermore, Dr. Johnston reported that Mr. C. has a history of 5 psychiatric hospitalizations from 1997-2006 for suicidal ideation, psychosis, poor impulse control disorder, mania and depression, however the father denied any mental health issues and denied being psychiatrically hospitalized. Mr. C. denied being on medication currently and the evaluator noted that prior records show that he was diagnosed with Bipolar Disorder and prescribed Risperdol but Mr. C. did not recall the medication. Mr. C. reported to the evaluator that the last time he was in mental health treatment was 11 years ago and stated that he no longer needs treatment. Dr. Johnston concluded that Mr. C. "lacked insight," denied the majority of his psychiatric issues, was "superficially cooperative," and was an "informant of limited reliability." Dr. Johnston recommended that Mr. C. engage in psychotherapy to address his psychiatric symptoms, submit to a psychiatric evaluation and medication monitoring, parenting skills training, therapy with Schmuel, and ongoing supervision and monitoring by ACS. The evidence taken as a whole establishes that although Mr. C. has had more regular telephone contact with Schmuel recently, his contact with both Schmuel and the agency has been sporadic and he does not have an understanding of Schmuel's mental health needs.

Mr. C. testified in support of his direct case for custody of Schmuel. The court found his testimony to be self-serving, vague and largely incredible, although the court does not question that Mr. C. loves his son. Mr. C. testified that he and the respondent mother divorced in 2003 and that he moved to Israel in July 2007, and currently lives in Eilat, Israel with his wife of 6 years.

Mr. C. acknowledges that Schmuel has never been to Israel and Mr. C. actually has no intentions for Schmuel to reside with him and his wife in his 3 ½ bedroom apartment in Eilat. In [*4]fact, Mr. C. stated that his wife has never met Schmuel and that his plan is for Schmuel to go to a boarding school called Beit Sefer Melacha Chabad of Kiryat Malachi. Mr. C. claimed that Schmuel has not been accepted at this school yet, and the international social worker would have to make the arrangements for Schmuel to get enrolled in this school. Schmuel would live at the boarding school and come home to visit Mr. C. once every 3 weeks and on holidays. Mr. C. testified that this school "provides everything that he gets now," and that Schmuel will get "whatever he needs," however it was also clear from Mr. C.'s testimony that he really does not understand what services Schmuel needs and he does not know what services he currently receives at Edenwald. He informed this school that his son takes "pills," but he didn't remember the name of the pills or how many different types of pills Schmuel takes. Mr. C. was not aware of Schmuel's diagnosis of Post Traumatic Stress Disorder or Mild Mental Retardation and testified that he was told that Schmuel is "hyper." Mr. C. further stated that he is waiting to find out what services his son needs and that no one at the agency has told him what services are needed in the 2 plus years that Schmuel has been in foster care. Mr. C. also testified that he has been in touch with an International social worker in Israel named Ms. Horowitz, and that Ms. Horowitz was allegedly making a visit to Mr. C.'s home in early October, however no report was ever received from Ms. Horowitz. The court has no objective information about the father's home or what services are available to him. In contrast, while at Edenwald, Schmuel receives 24 hour structure and supervision, therapeutic milieu support, case management services, medical and dental services, psychological and psychiatric services, life skill services, recreational opportunities and special education services.

Furthermore on cross examination, Mr. C. acknowledged that he is not engaged in family counseling with Schmuel, that he has not completed parenting skills training, that he has not met with Schmuel's psychiatrist at Edenwald and that he could not remember his or her name, that he has not met with his son's teachers in the last 2 years, and that he does not even know the name of his teacher, and that he does not even know what grade Schmuel is in. Furthermore, Mr. C. denied being psychiatrically hospitalized five times in the past. He also denied having thoughts of suicide and denied being diagnosed with Bipolar Disorder, however he did acknowledge being prescribed pills "to calm me down" because he was "too nervous." Mr. C. further stated that he is not currently receiving any mental health services. The court gives very little weight to the one page letter by Dr. Boris Margolin that Mr. C. has offered as Exhibit C. There is no information as to the qualifications of Boris Margolin or the basis for the conclusion that Mr. C. is "without a psychiatric problem of any sort" and no need for psychiatric treatment. This letter appears to be based solely on Mr. C.'s self-report.

While Mr. C. visited Schmuel consistently during the time periods that he was in New York, both at Edenwald and in the home of family friend Mr. Slavin, Mr. C. left New York to return to Israel in March 2013 and then did not visit Schmuel from March to August 2013. In response to the court's questions about Mr. C.'s alleged failure to contact the agency in that 5 month period, Mr. C. incredibly answered that he called every day, two times per day.

Also of concern to the court is the fact that Mr. C. carries a gun as part of his job as a [*5]security guard. Mr. C. testified that he carries the gun only when he is on duty and that when he is not on duty, the gun stays in a safe in his home. However, he has informed Ms. Warmflash on more than one occasion that he feels that he can provide safely for Schmuel in his home because he has a gun in his home. See Petitioner's 1. The father's testimony as a whole, as well as the evidence submitted by ACS, leads the court to believe that Mr. C. has a very superficial understanding of what it means to maintain a safe home for Schmuel.

Lastly, the court does note that 14 year old Schmuel wants to live with his father. His attorney has been advocating this position since the commencement of this hearing. Schmuel's desire to live with his father also came out clearly during the testimony of ACS's witnesses, the testimony of the father, and the testimony of his 18 year old sister Simcha. Additionally, the court did an in camera interview of Schmuel which was consistent with that position. A child's wishes are not dispositive but they are a factor for the court to consider in conjunction with all the other factors in this case. Flood v. Flood, 63 AD3d 1197 (3rd Dep't 2009); Luke v. Luke, 90 AD3d 1179 (3rd Dep't 2011). Furthermore, how much weight the court should give to the child's wishes depends on the child's age, maturity and ability to articulate their needs and preferences. O'Conner v. Dyer, 18 AD3d 757 (2nd Dep't 2007). The reality is that Schmuel is a child with significant psychiatric and mental health needs and that the father is not in a position to address these needs. Based on the record before this court, the court does not find that is in the best interests of the child to award final custody to Mr. C. The court cannot conclude that Mr. C. will provide the child with a safe and permanent home. Furthermore, the court finds that the safety of the child will be jeopardized if there is no further supervision on this case.

Accordingly, the court finds that an order placing the subject child with ACS until the completion of the next permanency hearing is in the child's best interests, and the custody petition of Levy C. is dismissed.

It is further ORDERED that:

The respondent mother is to cooperate with a sex offender treatment program.

The respondent mother is to cooperate with a final one year Order of Protection on behalf of the subject child, full stay away. The respondent mother is to cooperate with the existing criminal court Order of Protection.

ACS and its designated contract agency to expedite the child's placement in a foster boarding home that will accommodate the child's medical and therapeutic needs.

ACS and its designated contract agency to immediately investigate the feasibility of placing the subject child in the home of Gershon S.

ACS and its designated contract agency to continue facilitating visits between Schmuel and community resources.

ACS and its designated contract agency to continue facilitating contact between Schmuel and Levy C.

ACS and its designated contract agency to provide the non respondent father and the respondent mother with regular updates on the child's well being, including but not limited to the child's [*6]schooling and the child's medical and psychiatric treatment.

Dated: November 25, 2013

______________________________

Hon. Lillian Wan, JFC