In re Araynah B.

• Decision Date: 17 October 2011
• Citation: 939 N.Y.S.2d 239,2011 N.Y. Slip Op. 21434,34 Misc.3d 566
• Parties: In the Matter of Araynah B. (DOB 8/9/2000), Amir R. (DOB 9/21/2006), Children under Eighteen Years of Age Alleged/Found to be Neglected by Moshammet R., Respondent.
• Court: New York Family Court

2011 N.Y. Slip Op. 21434

34 Misc.3d 566

939 N.Y.S.2d 239

In the Matter of Araynah B. (DOB 8/9/2000), Amir R. (DOB 9/21/2006), Children under Eighteen Years of Age Alleged/Found to be Neglected by Moshammet R., Respondent.

Family Court, Kings County, New York.

Oct. 17, 2011.

Brooklyn Family Defense Project, Brooklyn (Lauren Shapiro of counsel), for respondent.

Administration for Children's Services, Brooklyn (Michelle Burke of counsel), for petitioner.

Legal Aid Society, Brooklyn (Lisa Podemski of counsel), Attorney for the Children.EMILY M. OLSHANSKY, J.

NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK

OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

In this post-dispositional Family Court Act article 10 proceeding, respondent mother has moved to modify the dispositional order previously entered against her on consent and for the entry of a suspended judgment. She has also moved to vacate the initial finding of neglect entered against her on consent pursuant to Family Court Act § 1051. The motions are supported by the Attorney for the Children and opposed by NYCCS. For the reasons set forth herein the motions are granted.

Procedural History

On June 11, 2008, NYCCS filed petitions against respondent mother alleging that the subject children were neglected children pursuant to Family Court Act § 1012(f)(I)(b).¹ NYCCS requested and the Court granted a removal of the children. Shortly thereafter, Araynah was temporarily released to her non-respondent father and Amir was placed in kinship foster care with his maternal uncle.

On March 9, 2009, respondent waived her right to a fact-finding hearing and consented to a finding of neglect being entered against her pursuant to Family Court Act § 1051(a).² On the same date, the subject children were temporarily released to her under NYCCS supervision.

On July 16, 2009, respondent waived her right to a dispositional hearing and consented to a dispositional order. That order released the children to respondent under six months NYCCS supervision on the condition that she cooperate with announced and unannounced visits, submit to random urine screens, cooperate with drug treatment, ensure that Araynah attend school regularly and on time, complete a parenting skills course, maintain a safe and sanitary home, make appropriate child—care arrangements, utilize only child—care providers cleared through the New York State Central Registry and not leave the children alone with Trevor T.³

During the months that followed, respondent complied with the provisions of the dispositional order. She also continued to attend school and search for a job.

By Notice of Motion dated December 24, 2009, and returnable on January 6, 2010, respondent moved pursuant to Family Court Act §§ 1052(a), 1055 and 1061 to modify the dispositional order and suspend judgment effective January 15, 2010. In support of her motion, respondent submitted an affidavit in which she described her compliance with the provisions of the dispositional order and service plan. She asserted that she was attending college and searching for a job. She indicated that she hoped to find a job working for the Board of Education. She asserted that a suspended judgment would greatly increase her chances of obtaining employment by the Board of Education since it would facilitate her efforts to amend her New York State Central Registry record. This, she asserted, would be in the children's best interests since it would enable her “to support [them] more easily and steadily.”

Respondent asserted that her motion should be granted without a hearing. She contended that a hearing was unnecessary because NYCCS did not deny that she had complied with all aspects of her service plan.

NYCCS submitted an affirmation in opposition to respondent's motion. NYCCS asserted that there were numerous disputed issues that could not be resolved without a hearing. The agency also asserted that by the time that a hearing could be conducted the court would no longer have jurisdiction over respondent or the children. NYCCS further asserted that the facts and circumstances in the instant case did not justify the unusual relief that respondent requested. Finally, NYCCS questioned whether a suspended judgment should be ordered simultaneously with a dismissal at the end of the dispositional period and whether that would be in the children's best interests given the uncertain nature of respondent's future job prospects.

The Attorney for the Children submitted no papers in support of or opposition to the motion. Nevertheless, she orally indicated that she supported the motion for a suspended judgment.

By order and decision dated January 12, 2010, respondent's motion was denied. That decision was based on a number of factors. First, the Court concluded that the relief requested by respondent could not be granted without either the consent of the parties or a hearing. Second, because the period of supervision was scheduled to conclude within three days, the hearing could not be concluded until after the dispositional period had expired, supervision had ended and the court no longer had jurisdiction over the family. Third, respondent failed to allege any changed circumstances or other factual basis to support a finding of “good cause” and warrant a new hearing to consider modification of the original dispositional order that had recently been entered on consent. Fourth, the Court concluded that the purpose of a suspended judgment—to provide a parent with a second chance and a brief grace period to meaningfully address the problems that led to the original finding during a period of ongoing monitoring and supervision—was best served if it were ordered toward the beginning of the dispositional period, rather than after its conclusion. Finally, the Court questioned whether the statutory provisions authorized the entry of a suspended judgment simultaneously with a dismissal after the expiration of the original period of supervision.

Respondent appealed and by decision and order of the Appellate Division, Second Department dated March 16, 2011, the order denying respondent's motion was reversed ( Matter of Araynnah B., 80 A.D.3d 608, 914 N.Y.S.2d 669 [2d Dept.2011] ). The Appellate Division held that “[u]nder the circumstances of this case, the Family Court should have held a hearing on the mother's motion pursuant to Family Court Act § 1061 to modify the order of disposition.” The Court took “no position as to whether the mother's request to modify the dispositional order to an order suspending judgment pursuant to Family Court Act § 1052(a)(i) should be granted.” Accordingly, the matter was remitted to the undersigned to conduct the hearing.

Thereafter, on July 13, 2011, respondent filed an order to show cause seeking to vacate the original finding of neglect. Respondent asserted that even if the court granted the suspended judgment and dismissed the petition at the end of the suspended judgment period, the finding of neglect would remain unless the court entered an order of dismissal explicitly vacating it. In support of the motion respondent cited Matter of Crystal S. (74 A.D.3d 823, 902 N.Y.S.2d 623 [2d Dept.2010] ),⁴ which had been decided after the original dispositional order had been entered.

Thereafter, on July 22, 2011, the Court conducted a hearing pursuant to Family Court Act § 1061 to determine whether to modify the dispositional order, enter a suspended judgment and/or whether to vacate the finding of neglect. At the hearing, respondent testified on her own behalf and submitted numerous documents into evidence. NYCCS called no witnesses and introduced no documentary evidence.

Respondent testified that she had completed a parenting skills class that she found and paid for on her own. She testified that she submitted to a mental health evaluation and engaged in individual counseling. She also testified that she completed a substance abuse treatment program at Cumberland Diagnostic and Treatment Center and became a peer counselor for young mothers at the program. She further testified that she had submitted to numerous random urine screenings and that her last positive toxicology was in July 2008. Respondent also testified that she had completed 10 anger management classes because she thought it would be helpful although she was not required to do so.

Respondent testified that she had obtained a High School General Equivalency Diploma. She further testified that, in August 2008, she began attending the Borough of Manhattan Community College to pursue an associate's degree in human services and social work. She testified that prior to obtaining her diploma she was forced to take a leave of absence when Amir became ill due to his asthma. She testified that she needed approximately 20 credits in order to obtain her degree. Respondent further testified that she did not have the financial resources to pay for school and that she has been unable to obtain employment as a teaching assistant because of the finding of neglect that was entered against her.

Respondent testified that both children were doing very well. She testified that Araynah was attending a charter school and that she had an overall “B” average but that she had an “A” average in science. Respondent testified that Amir was attending public school and that he was also doing well academically. She further testified that she had ensured that both children had been attending school regularly and on time. Respondent further testified that she had served as the vice president of the Parent Teacher Association at Amir's school and had also volunteered on school trips, in classrooms and in the school cafeteria.

In addition, respondent...