| Matter of Martha A. (Diana C.) |
| 2010 NY Slip Op 06146 [75 AD3d 476] |
| July 20, 2010 |
| Appellate Division, First Department |
| In the Matter of Martha A. and Others, Children Alleged to beAbused. New York City Administration for Children's Services, Appellant; Diana C.,Respondent. |
—[*1] Daniel M. Gonen, New York, for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Doneth Gayle of counsel), LawGuardian.
Order, Family Court, New York County (Jody Adams, J.), entered on or about February 3,2010, which, inter alia, granted respondent mother's application pursuant to Family Court Act§ 1028 for the return of the children Martha A., Rae Leann A., and Raymond A.,unanimously reversed, on the law, without costs or disbursements, the application denied, andthe matter remitted to the Family Court, New York County for further proceedings consistentherewith.
The mother has five children, Jennifer, Jessica, Rae Leann, Martha, and Raymond, ages 19,14, 12, 10, and 8, respectively. On January 6, 2010, the Administration for Children's Services(ACS) filed petitions against the mother alleging that by failing to protect Rae Leann fromsexual abuse by Jayson Maldonado, age 25, the mother abused Rae Leann and derivativelyabused Jessica, Martha and Raymond. ACS's initial application to remand the children wasdenied, with the court paroling them to the mother, subject to her enforcing a temporary order ofprotection directing Maldonado to stay away from the children, ensuring that the childrencontinue to receive therapeutic services and cooperating with Child Advocacy Centerrecommendations.
On January 20, 2010, ACS filed amended petitions alleging that the mother had a pattern ofallowing her children to be sexually abused. This included allegations that in addition to RaeLeann being sexually abused by Maldonado, while living with the mother, Jessica was sexuallyabused by her stepfather; Rae Leann and Martha were sexually abused by a family friend; RaeLeann became sexually active at age nine and was seen in a video performing a sexual act on a14-year-old boy; and Jennifer, at age 14, was statutorily raped and impregnated by Maldonado.The amended petition further alleged that the mother failed to report the statutory rape ofJennifer [*2]and continued to maintain a relationship withMaldonado, allowing him to sleep over in her apartment. The Family Court then issued an orderauthorizing ACS to remove the children from the home immediately and the mother timelyapplied for their return pursuant to Family Court Act § 1028.
Under Family Court Act § 1028, "[t]he court must do more than identify theexistence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it,whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. Itmust balance that risk against the harm removal might bring, and it must determine factuallywhich course is in the child's best interests" (Nicholson v Scoppetta, 3 NY3d 357, 378 [2004]).
"In order to justify a finding of imminent risk to life or health, the agency need not prove thatthe child has suffered actual injury. Rather, the court engages in a fact-intensive inquiry todetermine whether the child's emotional health is at risk" (id. at 377 [citation omitted]).In making the determination that imminent risk exists, it is "sufficient if the officials havepersuasive evidence of serious ongoing abuse and, based upon the best investigation reasonablypossible under the circumstances, have reason to fear imminent recurrence" (id. at 381[citations omitted]).[FN*]
At the Family Court Act § 1028 hearing, the testimony of a child protective specialistassigned to the case showed that the mother, knowing that Maldonado had statutorily raped andtwice impregnated Jennifer when she was 14, and that Rae Leann was sexually active and had a"crush" on Maldonado, nevertheless allowed Maldonado, who resides in the same building, tosleep over in her apartment in the same bedroom as Rae Leann. When the mother noticed ahickey on Rae Leann's neck, she asked Jessica to speak to her. Although Jessica reported thatRae Leann admitted that she had sex with Maldonado, and that Maldonado had alsoinappropriately touched Jessica and asked for sex, the mother told Jessica to keep quiet and thatshe would handle it. However, the mother never contacted the police and did not seek medicaltreatment for Rae Leann even though she knew that Maldonado was rumored to have a sexuallytransmitted disease. The mother allegedly told caseworkers that she did not know what to do anddid not see the point in contacting the police because while Maldonado would be arrested, the"child's head would still be messed up." It was not until Jessica reported the incident that ACSbecame involved and the mother's cooperation began.
Jessica also told caseworkers that Maldonado visited the mother's apartment twice a weekand that he drank and smoked marijuana. During July 2009, Jessica smoked marijuana withMaldonado while the mother was in the apartment. The mother claimed that Maldonado rarelydrank, but sometime in August 2009 she allowed him to sleep over even though he smelled ofalcohol. Further, the mother stated that she had a good relationship with Maldonado andadmittedly had sex with him on at least one occasion. When asked why she allowed men to sleepin the home given the history of her children being sexually abused, the mother allegedlyresponded that she did not want the children to grow up hating men and that she did not thinkMaldonado would abuse a child because she trusted him.[*3]
This evidence of the repeated sexual abuse of thechildren while in the mother's care, the mother's allowing Maldonado to sleep over in the samebedroom as the children despite the knowledge that he previously statutorily raped and twiceimpregnated Jennifer, the mother's failure to report the statutory rape of Jennifer or the sexualabuse of Rae Leann to the authorities, and the mother having a sexual relationship withMaldonado after the statutory rape of Jennifer, shows such poor judgment and flawedunderstanding of the mother's role as a caretaker over a period of years as to place the children atrisk of imminent harm (see Matter ofDaniel W., 37 AD3d 842 [2007]; Matter of Christina Z., 284 AD2d 210[2001]). Accordingly, applying the Scoppetta balancing test, notwithstanding themother's recent cooperation and the temporary order of protection, we find that the best interestsof the subject children will be served by continuing their removal until additional facts areadduced at a full fact-finding hearing (see Matter of Rosy S., 54 AD3d 377 [2008]; see also Matter of Gabriel James M.,59 AD3d 448 [2009]). Concur—Andrias, J.P., Saxe, Sweeney, Nardelli andCatterson, JJ.
Footnote *: Although the Court of Appealsarticulated this in reference to removals under section 1024, it is applicable in section 1028determinations (see Matter of Abraham P., 21 Misc 3d 1144[A], 2008 NY Slip Op52498[U], *11 [Fam Ct, Kings County 2008]).