Respondent, T.H., by Notice of Motion dated March 14, 2024, seeks to modify the order of disposition dated March 2, 2022 by granting her a suspended judgment and vacating the finding of abuse entered against her on February 16, 2021. The petitioner filed an affirmation in opposition to the respondent's motion. The attorney for the child filed an affirmation in support of respondent's motion. The attorney for the respondent filed a reply dated April 12, 2024, and the motion was marked fully submitted.

An abuse proceeding was filed against Ms. H. and E.J., E.'s father, on January 28, 2016. The petition was amended on August 17, 2017 to add a third respondent, A.B., Mr. J.'s partner. The petition alleged that one or more of the three respondents had physically abused the child, E.J.^[FN1] , so severely that she sustained life threatening injuries. On the day the initial petition was [*2]filed, E. was remanded to the custody of the Commissioner of Social Services and her sister, N., was released to Ms. H.'s care under ACS supervision. Ms. H. began having unsupervised visits with E. in December 2016 which were expanded to overnight visits in February 2018. On August 1, 2019, upon the consent of ACS and the attorney for the child, E. was released to Ms. H.'s care following Ms. H.'s application under FCA § 1028. On February 21, 2022, a finding of res ipsa abuse was made against all three respondents. The order of disposition dated March 2, 2022, released both E. and N. to Ms. H.'s care with no additional ACS supervision. No visitation with E. was provided for Mr. J. in the order of disposition.

Family Court Act § 1061 provides that, for good cause shown, a court may set aside, modify, or vacate any order issued during a child protective proceeding. See Family Ct Act § 1061; Matter of Boston G. (Jennifer G.), 157 AD3d 675 (2d Dep't 2018); Matter of Inocencia W. (Yasha W.), 147 AD3d 865 (2d Dep't 2017); Matter of Bernalysa K. (Richard S.), 118 AD3d 885 (2d Dep't 2014). A dispositional order may be modified upon a showing of "good cause" if it is based on all relevant facts and circumstances and is supported by a sound and substantial basis in the record. See Matter of Boston G. (Jennifer G.), 147 AD3d at 677.

The factors to be considered when deciding to grant a suspended judgment include: 1) the respondent's prior child protective history; 2) the seriousness of the offense; 3) the respondent's remorse and acknowledgment of the neglectful nature of the acts and 4) the respondent's compliance with court ordered services, treatment, and efforts towards rehabilitation. Matter of Araynah B. 939 N.Y.S.2d 239, 245 (Fam. Ct. Kings County 2011); In the Matter of Leenasia C. 154 AD3d 1, 12 (1st Dept. 2017). A modified order must reflect a resolution consistent with the best interests of the children. Matter of Arielle A.D., 192 AD3d 1019 (2nd Dept. 2021) quoting Matter of Aaliyah B., 170 AD3d 712 (2nd Dept. 2019). Family Court Article 10 was "enacted to protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being". Matter of Araynah B., 939 N.Y.S.2d at 245 quoting In re Commissioner of Social Services on Behalf of Leslie C., 617 N.Y.S.2d 855 (Fam Ct. Kings County 1994). The statute is intended to be "remedial, not punitive" in nature. Id at 245 quoting Matter of Jessica C., 505 N.Y.S.2d 321 (Fam Ct. Queens County 1986).

Respondent argues that Ms. H. should be granted a suspended judgment retroactively and the finding of abuse against her should be vacated because she had no prior ACS history, she immediately entered and promptly completed all services required of her, that both children have been in Ms. H.'s sole care since 2019 and that there have been no concerns about her care of the children. There have been no additional ACS cases filed against Ms. H. since the instant matter was filed in 2016. Respondent argues the abuse finding is harming Ms. H. and her children as the SCR record from the 2016 matter is negatively affecting her ability to earn additional income to help her to support the children. Specifically, respondent states that she lost her position assisting adults with intellectual disabilities because the SCR record prevented her continued employment.

Petitioner argues that the finding of abuse should not be vacated due to the seriousness of the injuries E. received and Ms. H.'s failure to express remorse and acknowledge her abusive behavior towards one of her children. While petitioner acknowledges that Ms. H. had no prior ACS history before the 2016 case, was cooperative with ACS, fully completed her service plan and has had the children in her care for years without incident, petitioner argues that Ms. H. has failed to establish good cause to be granted suspended judgment or that it would be in the best [*3]interests of the children to vacate the finding of abuse.

Ms. H. has shown good cause to modify the dispositional order to grant her a suspended judgment and to vacate the finding of abuse against her. Contrary to ACS's position, there is nothing in the case law cited by the petitioner that states the severity of the injuries in an abuse case have any bearing on whether a suspended judgment is warranted. FCA § 1053 does not limit the discretion of the court to award a suspended judgment to cases only involving neglect, nor does it specifically exclude cases involving allegations of abuse. While Ms. H. has not admitted direct fault for the injuries E. received, she ultimately demonstrated responsibility through her consistent cooperation with ACS, her completion of services and her uncontroverted good care of her children, both of whom have continued to thrive. ACS acknowledged that Ms. H. was cooperative with ACS supervision, completed services and took good care of the children who were released to her care. Additionally, neither ACS nor the attorney for the children have raised any concerns about the safety of the children who have been in Ms. H.'s sole care for years. A parent's overall conduct can demonstrate a parent's "acceptance of ultimate responsibility", including a parent's compliance with services, supervision, and visitation, in addition to favorable reports about their care of the children. In Matter of Ashlyn R., 189 AD3d 647 (1st Dept. 2020). Ms. H. has demonstrated her acceptance of ultimate responsibility through her conduct since the abuse petition was filed and continuing after it was adjudicated.

Furthermore, Ms. H. persuasively addressed her concern about how the abuse finding would impact her future employment opportunities and her ability to provide financially for her children in the best way possible. "The paramount concern in a dispositional hearing is the best interests of the child. The factors to be considered in making the determination include the parent or caretaker's capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect". In Matter of Eric Z., 100 AD3d 646 (2nd Dept. 2012), quoting In Matter of Lemar H., 23 AD3d 383, 384 (2nd Dept. 2005) (emphasis added). As previously stated, ACS has expressed no concerns that Ms. H. cannot properly care for her children or that the children are at risk from future harm due to abuse and neglect. Additionally, Ms. H. stated she lost her position caring for adults with intellectual disabilities because of the finding of the abuse and that it would be impossible for her to either try to become re-employed in the same position or to obtain a similar position with the finding of abuse in place. Further, Ms. H. reiterated the extreme financial hardship that her family would face because of the finding of abuse. She is the sole provider of financial support for the children. Ms. H. does not receive any child support for E. N. is a now sophomore at Howard University and E. is an active, engaged ten-year-old participating in extracurricular activities, very recently obtaining a red belt in karate. Both girls are successful students with bright futures, largely due to Ms. H.'s love and care of them. As Ms. H. is the children's primary provider of their financial support, it is in their best interests for their mother's employment opportunities to not be limited because of the finding of abuse. Therefore, it is in their best interests that finding of abuse to be vacated so that the family may continue to succeed and thrive.

Accordingly, Respondent's motion seeking a retroactive suspended judgment and to vacate the finding of abuse against her is granted.

This constitutes the decision and order of the court.

Notify counsel.