In re Felipe R.
| Decision Date | 05 July 2022 |
| Docket Number | Docket No. NN-00355/22 |
| Citation | 76 Misc.3d 373,172 N.Y.S.3d 350 |
| Parties | In the MATTER OF FELIPE R., A Child Alleged to be Neglected BY IRIS C., Respondent |
| Court | New York County Court |
Wesley Brandt, Special Assistant Corporation Counsel, FCLS on behalf of ACS
Sarah Bodack, Legal Aid Society, for the SC Felipe R.
Rebecca Suldan, Bronx Defender Services, for the Respondent Mother, Ms. Iris C.
The Administration for Children's Services ("A.C.S." hereafter) filed the underlying neglect petition against Iris C. on January 13, 2022. The petition alleges that she neglected the subject child, Felipe R., under Family Court Act ("F.C.A" hereafter) § 1012, in that she used excessive corporal punishment against him and his sister, Judith R. Ms. C. was previously found to have neglected another sibling, Victor R., on January 26, 2022, through a submission under F.C.A. § 1051a.
On April 18, 2022, ACS filed Motion No.4 seeking an order under F.C.A 1055-c that continued QRTP placement is necessary to adequately address Felipe's needs; the attorneys for the child and for the mother, ask that this application be denied.1
The hearing commenced on June 6, 2022 and continued through June 22, 2022. ACS entered three documents as Petitioner's 1-3: the QI for Felipe; the CALOCUS for Felipe; and the Summary Document for Felipe. Each of these was prepared by the ACS Qualified Individual (QI) who also testified concerning the basis for her recommendation that Felipe's needs require continued placement in a qualified residential treatment facility. ACS did not submit any other testimony or witnesses.
In response, the Attorney for the Child cross examined the QI and marked as AFC #1 a report entitled "Away from Home: Youth Experiences of Institutional Placements." ACS objected to admitting this document as lacking foundation. The Court reserved decision.
The Court has now reviewed the document and finds that it is admissible under CPLR 4532, which covers the admission of periodicals of general circulation. "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to printed materials purporting to be newspapers or periodicals of general circulation; provided however, nothing herein shall be deemed to preclude or limit the right of a party to challenge the authenticity of such printed material, by extrinsic evidence or otherwise, prior to admission by the court or to raise the issue of authenticity as an issue of fact." ACS did not challenge the validity or authenticity of the report. The report, prepared by Think of Us, a non-profit policy and research organization dedicated to child welfare practice, was supported by the Annie Casey Foundation and released in July 2021. Through structured research with foster youth, the authors document the negative impacts of unnecessary group home placement. It has been widely distributed and reported on, including forming a basis for an editorial published in the New York Times.2
Additionally, all parties agree that hearsay is admissible under 1055-c, under FCA 1046(c) which reads: "In a dispositional hearing and during all other stages of a proceeding under this article, except a fact-finding hearing, and in permanency hearings and all other proceedings under article ten-A of this act, only material and relevant evidence may be admitted."
This report qualifies under CPLR 4532 and is both material and relevant and is therefore admitted as AFC #1.
This decision pertains to a contested hearing pursuant to SSL § 393(2), F.C.A. § 353.7(3), § 756-b(3), § 1055-c(2), § 1091-a, and § 1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. § 672 and § 675a are codified in NY State. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court is asked to determine the most appropriate and least restrictive placement possible for Felipe. Specifically, in order to maintain his current placement, the Court must determine whether 1) Felipe's needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe's needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. If the Court determines that placement in a QRTP is required, it must specifically state the basis for that decision and whether an alternative setting could meet the child's needs.
The Court has reviewed all the evidence and testimony and finds that ACS has failed to meet its burden under FFPSA and FCA 1055-c.
Felipe has autism. He struggles with self-soothing, hygiene, expressing his needs, and other basic tasks. However, he forms meaningful bonds with family, including with his mother and siblings. Moreover, Felipe will need the same basic assistance whether he is in a group setting; at home; or in a therapeutic foster home. The services that he currently receives at his group home, including assistance with hygiene, school, and occupational therapy, are available in the community. Indeed, until the filing of the underlying petition, he has been living with his adoptive mother and siblings where his basic needs have been met even without extensive additional services. Felipe was also receiving speech, physical, and occupational therapy through his District 75 school placement. ACS's documentation does not present any evidence of a change in his medical, physical or emotional circumstances that would demonstrate a sudden compelling reason for his placement in...
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