In re Michael D.

30 Misc. 3d 502
CourtNew York Family Court
DecidedOctober 4, 2010
StatusPublished
Cited by5 cases

This text of 30 Misc. 3d 502 (In re Michael D.) is published on Counsel Stack Legal Research, covering New York Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Michael D., 30 Misc. 3d 502 (N.Y. Super. Ct. 2010).

Opinion

OPINION OF THE COURT

Carol R. Sherman, J.

On August 5, 2010, the attorney for Michael D. (child) (two years of age) moved by order to show cause to find the Administration for Children’s Services (ACS) and its contract agency, Little Flower Children and Family Services of New York (agency), in civil contempt for disobedience of lawful mandates of the court, pursuant to Judiciary Law § 753 (A) (3), which is made applicable to the Family Court pursuant to Family Court Act § 156. Counsel for the child alleged that ACS and the agency violated orders of this court issued on March 4, 2010 and May 10, 2010, and the violations were calculated to, and did impair, defeat and/or prejudice the rights and/or remedies of the child in the pending child neglect proceeding.

On August 17, 2010, the attorney for the agency, Little Flower Children and Family Services of New York, filed an affirmation in opposition to the order to show cause, and requested that the [505]*505court deny the motion filed by the Attorney for the Child on the following grounds: that the court did not name the agency by its corporate name in the orders at issue; that the orders were not served upon the agency; that the agency was not a party to the pending neglect proceeding, and, therefore, the agency was not properly before the court; that the orders were not clear and explicit; that the alleged violations were not calculated to nor did they defeat or impede the rights and/or remedies of the child; and the agency “had used its best efforts to comply with the Court’s directions” (agency attorney’s affirmation in opposition to order to show cause, dated Aug. 17, 2010,1Í1I 3, 4, 10, 13, 19).

On September 8, 2010, the attorney for ACS filed an affirmation in opposition to the motion seeking civil contempt and enforcement. ACS requested that the court deny the motion on substantive and procedural grounds. Counsel for ACS stated further that the requested punishment, the imposition of a fine of $250 for each day the court’s orders were violated, exceeds the court’s powers. The attorney for the respondent mother, Tiffany D., did not file a response to the motion.

Neither ACS nor the agency has raised a factual dispute in their written submissions as to compliance with court orders to provide supervision to the foster home in which the child was placed and ensure that mandated early intervention services were provided to the child in the foster home. The court finds that the parties have had a meaningful opportunity to be heard, and, since a factual dispute does not exist, a fact-finding hearing is not required (see Matter of Mosso v Mosso, 6 AD3d 827, 829 [3d Dept 2004] [“due process requires that, in contempt proceedings, the contemnor be afforded ‘an opportunity to be heard at a meaningful time and in a meaningful manner’ ” (citations omitted)]). Accordingly, the court makes the following findings of fact based on the record and the evidence.

On August 7, 2009, ACS filed the instant neglect petition. The petition alleged that the respondent mother failed to provide adequate supervision and guardianship to the child Michael in that she misused a drug or drugs, and was not voluntarily and regularly participating in a rehabilitative program, and that she left the child with his maternal grandmother, who had a prior finding of neglect in which the respondent mother was a subject child and was placed in foster care due to the grandmother’s substance abuse, and that the maternal grandmother admitted to the ACS caseworker that she uses cocaine.

[506]*506At the court appearance on August 7, 2009, at which an attorney for ACS and an ACS caseworker were present, the court paroled the child to the respondent mother on condition that she enroll and participate consistently in mental health and substance abuse treatment, and not leave the child with the maternal grandmother. The court directed ACS to assist the respondent mother in finding suitable housing, and to refer the child for an early intervention evaluation to assess his need for services.1 On September 22, 2009, ACS notified the court that it had removed the child from the custody of the respondent mother on September 18, 2009, pursuant to its emergency powers, based on her failure to comply with mental health and drug treatment services. ACS requested the court to remand the child pursuant to Family Court Act §§ 1017 and 1027. The court remanded the child, and ACS placed him in a nonkinship foster home supervised by the agency, Little Flower Children and Family Services of New York. At a court appearance on September 25, 2009, at which the ACS attorney and ACS child protective specialist were present, the court ordered the agency to refer the child for an early intervention evaluation and directed the agency case planner to be present at all court appearances.

On November 5, 2009, respondent mother failed to appear, and the court held the fact-finding hearing by inquest. The agency case planner and the ACS child protective specialist were present at the hearing. The court found, by a preponderance of evidence, that respondent mother failed to provide adequate supervision and guardianship for the child, in that the allegations in the petition were proved, and therefore she had placed him at risk of harm. The court found that the child was a neglected child, as defined in Family Court Act § 1012, and was neglected by respondent mother. The court set January 13, 2010 for the dispositional hearing. On January 13, 2010, the agency case planner failed to appear and failed to submit a written report on the status of services for the child and respondent mother. As a result, the dispositional hearing was adjourned to March 4, 2010. The court issued a warrant, execution stayed, directing the agency case planner to appear on the next court [507]*507date. The court ordered ACS and the agency to provide the court with a detailed report on February 2, 2010 that included the status of the exploration of kinship foster care, the results of the early intervention evaluation for the child, and a description of services that were in place. The child’s attorney advised the court that the agency had not cooperated in producing the child to meet with her. The court ordered the agency to schedule an appointment so the child could meet with his attorney.

On February 2, 2010, the ACS attorney, the ACS caseworker, and the agency case planner appeared. The agency submitted a court report and the early intervention evaluation of the child that Theracare, Inc. conducted on December 3, 2009. The early intervention evaluation found that the child had severe developmental delays and recommended that the child have a neurological and audiological evaluation. The child was found in need of and was receiving the following services: “Physical Therapy, Occupational Therapy two (2) times a week in the foster home for two 30 minutes [sic]. He also received Speech Therapy and Special Instruction in the foster home twice a week for 30 minutes.” The court ordered the agency to refer the child for evaluations by a pediatric audiologist and pediatric neurologist.

On March 4, 2010, the court held the dispositional hearing and a permanency hearing. The agency case planner and the ACS caseworker were present. Respondent mother did not appear. The court issued the following orders:

• Permanency hearing order dated March 4, 2010, the agency is to “immediately refer case for adoption and filing of [a termination of parental rights petition].”

• Order of disposition dated March 4, 2010.

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Cite This Page — Counsel Stack

Bluebook (online)
30 Misc. 3d 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michael-d-nyfamct-2010.