In re Allison C.

• Decision Date: 06 August 2014
• Docket Number: No. NA6111–14/11.,NA6111–14/11.
• Citation: 2014 N.Y. Slip Op. 51194,997 N.Y.S.2d 97,44 Misc.3d 1219
• Parties: 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.
• Court: New York County Court

?44 Misc.3d 1219
997 N.Y.S.2d 97
2014 N.Y. Slip Op. 51194

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.

No. NA6111–14/11.

Family Court, Kings County, New York.

Aug. 6, 2014

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,¹ 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, 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.² 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 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...