[*1]
Matter of Allison C. (Renee M.--Angel C.)
2014 NY Slip Op 51194(U) [44 Misc 3d 1219(A)]
Decided on August 6, 2014
Family Court, Kings County
Beckoff, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2014
Family Court, Kings County


In the Matter of Allison C., et al., Children Under the Age of Eighteen Years Alleged to be Abused/Neglected by Renee M. and ANGEL C., Respondents.




NA6111-14/11



The lawyers were: Nathaniel Guinn, ACS Family Court Legal Services, for petitioner ACS



Mary Jane Sclafani, Magovern and Sclafani (attorney for foster care agency)



Jessica Marcus, Brooklyn Defenders (father's lawyer)



Amy Serlin, Legal Aid Society (attorney for Allison)



Helene Chowes, assigned attorney for the other children


Alan Beckoff, J.

The motion before the Court presents the question of whether the father of a five-year-old child who stood by while the child's mother severely beat her should have visitation with this child and her siblings reinstated. After reviewing the record of the proceedings conducted by the judge who originally presided over this matter, as well as counsels' submissions,[FN1] this Court has determined that there are no factual issues requiring a hearing and that the answer is no.



Background



On February 28, 2011, the New York City Administration for Children's Services ("ACS") commenced this child protective proceeding under Article 10 of the Family Court Act by filing a petition against Renee M. and Angel C. alleging that Allison C., then age 5, was a severely abused child as defined in Social Services Law § 384-b. ACS claimed that Renee M., Allison's mother, admitted that in the weeks leading up to February 25, she had beaten Allison with a broomstick, burned her hand, [*2]and yanked out some of her hair. When Allison was seen by an ACS caseworker and a detective from the New York City Police Department, she had red marks and cuts to her ankles, a large cut on her forehead, a bloodshot left eye, cuts and scabs on her scalp, patches of hair missing, a burn on her left hand, red marks and scars on her buttocks, cuts and scabbing on her left cheek, and swelling to her jaw and right ear.



The petition further alleged that Renee M. also admitted that she did not take Allison for medical treatment because she did not want the child's multiple injuries to be discovered. ACS also claimed that Renee M. had tested positive for methadone although she was not currently in a drug treatment program, and that she had failed to comply with a 2009 dispositional order from Queens County Family Court that followed an Article 10 proceeding involving Allison and her siblings. These siblings, who ranged in age from thirteen to one, were alleged here to be derivatively abused.



As for Angel C., Allison's father, ACS claimed that he admitted that he had watched the mother beat the child but did not intervene, and that he also did not seek medical attention for the child's injuries.



At intake, all of the children except the eldest, Brandon F., were remanded to the custody of ACS.[FN2] Brandon was released to his non-respondent father. The Court issued a temporary order of protection directing the respondents to stay away from the children except during any agency-supervised visits.



On December 21, 2011, Renee M. pled guilty in Kings County Supreme Court, Criminal Term, to Assault in the First Degree and Endangering the Welfare of a Child. On January 17, 2012, she was sentenced to a prison term of ten years. The Court (J. Dwyer) also issued orders of protection directing her to stay away from and have no contact with Allison and the other children until January 2030.



At the fact-finding hearing that commenced in Family Court on January 26, 2012, ACS presented uncontroverted evidence against Renee M.: her plea minutes, the Supreme Court's certificate of disposition, and Allison's medical records. The Court (J. White) found by clear and convincing evidence that the respondent mother "did severely and repeatedly physically abuse the subject child Allison, causing periorbital bruising, subconjunctival hemorrhages, multiple abrasions, contusions, bruises, and burns." Based on this finding, the Court found the other children to be derivatively abused. On May 24, 2012, the Court entered a dispositional order on the respondent mother's part of this proceeding, placing all of the children except Brandon with ACS. Brandon was released to his maternal grandmother without further ACS supervision.



The fact-finding hearing against Angel C. also started on January 26 with the [*3]introduction of Allison's medical records and the testimony of the ACS caseworker, but was continued. On February 15, 2012, Angel C. pled guilty in Kings County Supreme Court, Criminal Term, to Assault in the Second Degree and Endangering the Welfare of a Child. On February 29, 2012, the Supreme Court (J. DiMango) sentenced him to a three-and-a-half year term in prison to be followed by three years of post-release supervision. That Court also issued orders of protection directing him to stay away from and have no contact with Allison and her siblings until the end of August 2023. None of the Supreme Court orders of protection against Renee M. or Angel C. contained a provision making them subject to any Family Court orders of visitation or custody.



On May 16, 2012, ACS moved for a finding pursuant to FCA § 1039-b that reasonable efforts to return the children to the respondents were no longer required because of their convictions of first and second degree assault against Allison. Judge White granted this motion as to the respondent mother without opposition on May 24. Respondent Angel C.'s counsel opposed the motion. On July 12, 2012, after hearing argument, Judge White granted the motion as to the respondent father. Counsel for Angel C. did not appeal from that order. The Court also held a permanency hearing on July 12, changed the permanency goal from reunification to placement for adoption, and directed the agency to file a termination petition within 60 days. Consistent with the 1039-b order, the permanency order did not provide for visitation.



Instead of continuing the fact-finding hearing against the respondent father when the proceeding resumed in Family Court, ACS filed a motion for summary judgment based on Angel C.'s conviction. On August 13, 2012, Judge White granted that motion and entered a finding that Angel C. abused Allison "by permitting the Respondent Mother to inflict severe and repeated abuse on the subject child, causing injury, and that his failure to take action contributed to the serious nature of the injuries sustained." As it did regarding Renee M., the Court found that the other children were derivatively abused. The Court entered a dispositional order the same day that, as with the order on the mother's part of the case, placed the children with ACS. The dispositional orders entered by Judge White did not provide for visitation of any of the children by either respondent, nor did they provide for a service plan, such as parenting skills or therapy.



On August 28, 2012 and February 26, 2013, Heartshare-St. Vincent's, the foster care agency with case planning responsibility, filed petitions to terminate the respondents' parental rights. The agency subsequently moved for summary judgment as to the mother and on August 15, 2013, the Court granted it. Disposition was held in abeyance pending the completion of the fact-finding hearing on the father's part of the case. That hearing commenced on July 10, 2014 before this Court and is still [*4]pending.



Court Attorney Referee McKnight conducted permanency hearings in December 2012, December 2013, and June 2014. Each time, the referee issued orders approving goals of continued placement for adoption. Referee McKnight did not order any visitation because of Judge White's 1039-b order.



In April 2014 Angel C. was released on parole. On June 5, 2014, without notice to ACS, Heartshare, or the attorneys for the children, respondent father's counsel moved by Order to Show Cause in Supreme Court for a modification of that Court's orders of protection to make them subject to Family Court orders of visitation and custody. On June 11, 2014, the Supreme Court (J. Ingram, Justice DiMango having retired), granted the motion and modified the orders of protection accordingly. At the most recent permanency hearing, also held on June 11, 2014, Angel C.'s counsel informed Referee McKnight of the Supreme Court's order. Referee McKnight directed the agency to hold a conference within two weeks to develop a written visitation plan for the father or advise this Court whether it still did not support visitation.



Respondent's Order to Show Cause



On June 17, 2014, counsel for Angel C. moved by Order to Show Cause, when, again, a Notice of Motion would have been the appropriate vehicle, for an order pursuant to FCA §§ 1055 (c) and 1061 directing ACS to provide weekly supervised visits between him and the children. Counsel argued that FCA §§ 1030, 1055, and 1089, as well as ACS's own policies, require a visitation plan between parents and children placed into foster care unless visitation would be contrary to the children's best interests. In his supporting affidavit, respondent said that he had just completed a parenting skills class at Boys' Town, was complying with the conditions of his parole, was enrolled in an anger management class, and was also in a program called Positive Changes in Recovery at the Center for Community Alternatives. Also annexed to respondent's motion were ACS progress notes of the children's visits or phone calls with him in the months shortly after they were removed into foster care in 2011.



Conspicuously and curiously absent from counsel's recitation of the facts or legal argument was the crucial fact that this Court's predecessor had entered an order under FCA § 1039-b specifically relieving ACS of the duty to make reasonable efforts toward reunification, which would include visitation. This Court denied counsel's application for the interim relief of commencing supervised visits immediately, which would, of course, have been the ultimate relief.



Counsel for ACS, Heartshare, and the attorney for Allison all submitted answers in opposition to the respondent father's request for any visitation. All pointed [*5]out to this Court the finding made by Judge White pursuant to FCA § 1039-b. They also argued that it was not in the best interests of the children to visit with their father. The attorney for Allison's siblings, however, said that she was supporting therapeutic visits between them and the father.[FN3]



Decision



When an order of protection issued in a criminal proceeding provides that it is subject to subsequent Family Court orders in custody, visitation, or child abuse proceedings, the Family Court is permitted to enter such orders if they are consistent with the child's best interests. See Matter of Brianna L., 103 AD3d 181 (2nd Dept., 2012). Considering the severe and repeated abuse that Allison was subjected to by her mother while her father looked on, failed to intervene, and then failed to seek medical treatment, this Court is hard put to see how it is in the best interests of Allison and her siblings to allow him to have even supervised visits with them.



Respondent's counsel casts this motion as one for mere modification of a dispositional order pursuant to FCA § 1061, completely glossing over the fact that the Family Court determined prior to disposition that the foster care agency was relieved of its obligation to make reasonable efforts to reunite the family, including scheduling any kind of visitation. Even if respondent's counsel had brought to this Court's attention the FCA § 1039-b order that Judge White had entered, that determination is the law of the case unless there is a showing of new evidence or a change in the law. Neither is present here and therefore this Court cannot re-examine the issue. See, e.g., Matter of Yamilette M.G., — AD3d — , 986 NYS2d 485 (2nd Dept., 2014).



On this motion, Respondent argues that FCA § 1055(b)(i)(A) requires that a dispositional order placing children into foster care include "a description of the visitation plan" and that FCA § 1055(c) provides that the Family Court may order the appropriate child protective agency "to make diligent efforts to encourage and strengthen the parental relationship when it finds such efforts will not be detrimental to the best interests of the child. Such efforts shall include encouraging and facilitating visitation with the child by the parent "



But in this case these sections of the Family Court Act are trumped by FCA § 1089 (c)(4)(i), which provides that a permanency hearing report "shall include a description of the reasonable efforts to achieve the child's permanency plan unless [*6]the child is freed for adoption or there has been a determination by a court that such efforts are not required pursuant to [FCA section 1039-b]" and FCA § 1089 (d)(2)(viii)(F), which provides that after a permanency hearing "[t]he court may make an order directing a local social services district or agency to undertake diligent efforts [including encouraging and facilitating visitation with the child by the parent] to encourage and strengthen the parental relationship when it finds such efforts will not be detrimental to the best interests of the child and there has been no prior court finding that such efforts are not required."



Respondent's counsel also argues that the father's conviction of second degree assault does not automatically invalidate his visitation rights. See FCA § 1085 (conviction of first or second degree murder of child's parent, sibling, etc., renders unenforceable any visitation or custody order). This is correct as far as it goes. But again, it ignores FCA §1039-b (a)(4), which allows the Family Court to enter a finding that reasonable efforts to return a child to his or her home are no longer required where, as here, the parent has been convicted of first or second degree assault and the commission of the crime resulted in serious physical injury to the child.[FN4]



Respondent's motion also fails to meet the "good cause" standard of FCA § 1061. The basis for his application is that the children enjoyed their visits and phone calls with him shortly after their removal three years ago; that he recently completed a parenting skills program; and that he is currently enrolled in anger management and counseling. This is insufficient to raise a factual issue to warrant a hearing or establish good cause to modify the dispositional order so as to provide visitation. See Matter of Melissa FF., 285 AD2d 682 (3rd Dept., 2001).What the Court of Appeals said in Matter of Marino S., the seminal case affirming the constitutionality of the Adoption and Safe Families Act (of which FCA § 1039-b is a part), applies just as strongly in this case: "In light of the heinous acts perpetrated by Marino on Shaina, and the utter disregard for the child's life exhibited by both respondents, the contention that the Family Court erred is devoid of merit. [*7]The affirmed findings that Shaina's health and safety have been — and would continue to be — jeopardized by respondents' abuse are amply supported by the record, including evidence of delay in getting help and lies about the cause of injury, which placed the child's life in grave danger." 100 NY2d 361, 372 (2003).



Accordingly, Respondent Angel C.'s motion to reinstate visits between him and the children is denied.



This constitutes the decision and order of the Court.

ENTER:

______________________________

ALAN BECKOFF, JFC



Dated:Brooklyn, NY



August 6, 2014

Footnotes


Footnote 1: Pursuant to Family Court Rule § 205.11(d), the Court did not direct oral argument on this motion, nor was any requested.

Footnote 2: The Legal Aid Society was appointed as attorney for Allison. A lawyer from the Assigned Counsel/Attorneys for Children panel was appointed as attorney for the rest of the children.

Footnote 3: Counsel also renewed an application, originally made as part of a request for an extension of time to submit an answer to the father's motion, to be relieved from representing one of Allison's siblings because, she said, she had new information indicating that there was a conflict between his position and that of Allison's other three siblings. Upon further consideration, this Court will grant that application going forward and assign this child a separate attorney for the termination proceeding. However, for the purposes of deciding this motion, that issue is moot.

Footnote 4: Respondent's appellate counsel submitted an affirmation asking that this Court not consider his criminal conviction in the pending termination proceeding (and, by extension, this motion) because of respondent's claims of "constitutional invalidity." This argument is meritless because the simple fact remains that respondent's conviction stands unless and until it is reversed or vacated. See Ramos v. City Of New York, 61 AD3d 51 (1st Dept., 2009) (plaintiff permitted to renew summary judgment motion that had been granted upon his conviction on related charges after his conviction was reversed as being against the weight of the evidence); Matter of Denise GG., 254 AD2d 582 (3rd Dept., 1998) (court rejected respondent father's claim that a question of fact was raised by his unsuccessful attempt to withdraw his guilty plea in the related criminal proceeding).