| Matter of Amber Gold J. |
| 2009 NY Slip Op 01481 [59 AD3d 719] |
| February 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Amber Gold J. Administration for Children'sServices, Respondent; Vanessa J. et al., Appellants. |
—[*1] Larry S. Bachner, Jamaica, N.Y., for appellant Marvin J. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and AlanBeckoff of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler, Susan Clement, and Deborah Williamsof counsel), attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the mother appeals,and the father separately appeals, from an order of the Family Court, Queens County (Richroath,J.), dated November 29, 2007, which, after a hearing, denied their application pursuant to FamilyCourt Act § 1028 to return the subject child to their custody.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the contentions of the parents, the Family Court providently exercised itsdiscretion in denying their application pursuant to Family Court Act § 1028 to return thesubject child to their custody. There was ample evidence presented at the hearing to support theconclusion that the child's emotional, mental, and physical health would be at imminent risk ifshe was returned to live with her parents (see Family Ct Act § 1028; see also Matter of Andrew B., 49AD3d 638 [2008]; Matter of Faith J., 47 AD3d 630 [2008]; Matter of Mollye S., 28 AD3d487, 488 [2006]; Matter of AnesiaE., 23 AD3d 465, 465-466 [2005]; Matter of Angel Marie L., 5 AD3d 773, 773-774 [2004]).[*2]
In light of the foregoing, and the failure of the parents tocooperate with the Administration for Children's Services (hereinafter ACS), we agree with theFamily Court's determination that the safer course is to not return the child to the parents'custody at this time (see Matter ofSolomon W., 50 AD3d 912 [2008]; Matter of Iouke H., 50 AD3d 904, 905 [2008]).
The mother's remaining contentions are without merit.
We share the concern of our dissenting colleague that this matter should proceed toresolution as quickly as possible in the Family Court. However, we note that during thependency of this matter the child has made a very favorable adjustment to her current foster careplacement, and that medical treatment has only been sought for her in response to genuine healthproblems which are unrelated to that placement. Moreover, while the dissent would return thechild to the parents upon their compliance with various conditions, ACS and the Family Courthave already imposed similar conditions with which the parents have largely failed to cooperate.Should the parents wish to work toward reunification with the child, they already have it withintheir power to do so. Mastro, J.P., Balkin, and McCarthy, JJ., concur.
Miller, J. (dissenting and voting to reverse the order, and to [1] grant the application for thereturn of the child to the custody of the parents, on condition that within 30 days of the date ofthis decision and order the mother enters into a course of treatment with a mental healthprofessional to be designated by the Family Court, Queens County, and that such professionalthereafter certifies to the Family Court the mother's compliance with his or herrecommendations, including, but not limited to, any program of medication that may beprescribed, pending which the child shall remain in the custody of the Administration forChildren's Services; should the designated mental health professional certify to the Family Courtthe mother's compliance with the foregoing, the child shall be returned to the parents subject tothe additional conditions that [a] the child be enrolled in a school outside of the home, [b] themother continue in therapy and compliance with any course of medication, if indicated, [c] theparents inform the Administration for Children's Services of all medical appointments andtesting scheduled for the child, and [d] the parents permit the Administration for Children'sServices to supervise the household, and allow it access thereto, upon request, and [2] remit thematter to the Family Court, Queens County, for the designation forthwith of an appropriatemental health professional to treat the mother, in accordance with the following memorandum): Irespectfully dissent. The record in this proceeding indicates, inter alia, that the mother repeatedlysubjected the child to medical intervention based upon her perception that the child hadsymptoms that were not observed by examining physicians, was of the view that the childsuffered from sexually-transmitted diseases that were not confirmed upon testing, and believedthat a conspiracy existed among the child's doctors against the parents. Furthermore, there isevidence that the parents did not always cooperate with the Administration for Children'sServices (hereinafter ACS), and made it difficult on some occasions for the agency to contactthem.
Nonetheless, the record also reflects that prior to the hearing pursuant to Family Court Act§ 1028 there was no imminent risk to the child. She was being well cared for by theparents. [*3]Although a pediatrician who had examined the childinsisted at the hearing that she was a "well child," the record further reflects that since beingplaced in foster care she has been taken to doctors on numerous occasions, hospitalized forconvulsions as well as pneumonia, and currently is on medication for asthma. The section 1028hearing went on for some three months after the parents requested it, with the parents havingvirtually no meaningful visitation. The child has been out of her parents' care for 1½ years,and has been in four foster homes. The neglect proceeding is still pending. The results of thatproceeding will leave the child in limbo for at least another year, if not permanently. It is in thechild's best interest to be reunited with normal, functioning parents. This was the "plan" set forthby the Family Court and the Administration for Children's Services. This may be the child's lastchance.
In my view, under the circumstances, the Family Court improvidently exercised itsdiscretion in denying the parents' application pursuant to Family Court Act § 1028 toreturn the subject child to their custody. There was insufficient evidence presented at the section1028 hearing that the child's life or health would be at imminent risk if she was returned to livewith her parents (see Family Ct Act § 1028). The imminent danger must be near orimpending, not merely possible (seeNicholson v Scoppetta, 3 NY3d 357, 369 [2004]).
While the mother's behavior with regard to subjecting the child to repeated medicalinterventions does not demonstrate an imminent danger to the life or health of the child, itnevertheless is of concern. However, I would address that behavior by conditioning return of thechild upon the mother's participation in a program of mental health treatment with a mentalhealth professional to be designated by the Family Court, and her compliance with any regimenof medication that her treatment provider may deem advisable in the course of that treatment.Should the designated mental health professional certify to the Family Court the mother'scompliance with the foregoing conditions, then the child should be returned to the custody of herparents subject to the additional conditions that the child be enrolled in a school outside of thehome (as opposed to the home schooling of the child the parents pursued in the past), the mothercontinues in therapy and compliance with any course of medication that is indicated, the parentsinform the ACS of all medical appointments and testing scheduled for the child, and the parentspermit the ACS to supervise the household, and allow it access thereto, upon request. I wouldremit the matter to the Family Court, Queens County, for designation forthwith of an appropriatemental health professional to treat the mother.[*4]
Motion by the appellant Vanessa J. on appeal from anorder of the Family Court, Queens County, dated November 29, 2007, to strike the briefs of therespondent and the attorney for the child on the ground that they refer to matter dehors therecord. Separate motion by the appellant Marvin J. to strike the respondent's brief on the groundthat it refers to matter dehors the record. By decision and order on motion of this Court datedSeptember 19, 2008 [2008 NY Slip Op 83620 (U)], the motions were held in abeyance andreferred to the panel of Justices hearing the appeals for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motions, the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the motions are denied. Mastro, J.P., Miller, Balkin and McCarthy, JJ., concur.