In re Kenneth R., XXXXX
| Decision Date | 28 January 2019 |
| Docket Number | XXXXX |
| Citation | 94 N.Y.S.3d 770 |
| Parties | In the MATTER OF KENNETH R., Tahnyla S., Quadir S., Isaiah W., Javion W., Children under the Age of Eighteen Years Alleged to be Severely Abused, Abused or Neglected by Harold S. (Respondent Father/PLR), Alicia R. (Respondent Mother/PLR), Warren W. (Respondent Father/PLR), Respondents. |
| Court | New York County Court |
Special Assistant Corporation Counsel, Family Court Legal Services, Attorney for the Petitioner, Administration for Children's Services, 150 Williams Street, New York, New York 10038
Stephanie A. Suquet, Esq., Attorney for Subject Child, Kenneth R. Lawyers for Children, 110 Lafayette Street, New York, New York 10013
Catherine Wise, Esq., Attorney for the Subject Children, Quadir S. and Tahnyla S., The Legal Aid Society, Juvenile Rights Practice, 60 Lafayette Street, Room 9A, New York, New York 10013
Daniel Robles, Esq., Attorney for Subject Children, Isaiah W. and Javion W., 299 Broadway, Suite 1415, New York, New York 10007
Helene Bernstein, Esq., Attorney for Respondent Mother, Alicia R., 44 Court Street, Suite 905, Brooklyn, New York 11201
Jonathan Nelson, Esq., Attorney for Respondent Father, Harold S., 11 Park Place, Suite 711, New York, New York 10007
William Booth, Esq., Attorney for Respondent Father, William W., 150 Ludlow Street, Apt. 6F, New York, New York 10002
Lauren Mitchell, Esq., Attorney for the Non-Respondent Mother, Equashaw W., Center for Family Representation, 40 Worth Street, Suite 605, New York, New York 10013
June Callwood, Esq., Attorney for Non-Respondent Father, Darrell D., 401 Broadway, Suite 803, New York, New York 10013
The questions presently before this Court pursuant to a motion filed by the Attorney for Kenneth R. (date of birth April 12, 2000) (hereinafter "Kenneth"), are whether the Administration for Children's Services (hereinafter "ACS") should be held in civil contempt for violating this Court's orders; whether ACS should be required to pay financial sanctions to Kenneth for its failures to comply with those orders; and the amount of sanctions that should be imposed, if any.1
Respondent Harold S. ("Mr. S."), is the alleged biological father of the subject child, Quadir S. (hereinafter, "Quadir") and is the legal father of Tahnyla S. (hereinafter, "Tahnyla"). The mother of Quadir and Tahnyla is Equashaw W. Equashaw W. has been subject to prior child protective proceedings (see e.g. Docket No. NN-40174/14) and, during all relevant times, she was married to Darrell D. Alicia R. ("Ms. R.") is the biological mother of the subject children, Isaiah W. (hereinafter, "Isaiah"), Javion W. (hereinafter, "Javion"), and Kenneth R. Warren W. previously resided with Alicia R., Isaiah W., Javion W. and Kenneth R. in Virginia. Mr. W. is allegedly the biological father of Isaiah W. and a Person Legally Responsible for Javion and Kenneth. ACS alleged that Warren W. committed acts of child neglect against Isaiah W., Javion W. and Kenneth R. At the time that the instant proceeding was commenced, Mr. S. and Ms. R., married in Virginia in May 2017, were living together in New York City with the five subject children.
On February 20, 2016, Tahnyla S. was born to Equashaw W. Harold S., Tahnyla's legal father, was present in the hospital when she was born. After Tahnyla was born, ACS commenced a child protective proceeding against Equashaw W. (Docket No. NN-034563/16), seeking a removal and remand.
On February 23, 2016, Harold S. appeared before this Court to request that Tahnyla be released to him. He indicated that he was willing to submit to drug testing and that he had adequate provisions for the baby in his home. He had no criminal or child protective history. He lived with his mother and brother.
By order dated February 23, 2016, with the consent of the Attorney for the Child, Tahnyla was temporarily released to Harold S. with ACS supervision. The following day, ACS filed an order to show cause seeking a removal and remand of Tahnyla. ACS asserted that Mr. S.'s NYCHA apartment was unsuitable because it was cluttered and contained peeling paint. On the return date of the motion, ACS continued to note the peeling paint. Mr. S. produced photographs of the apartment establishing that he had removed the clutter and cleaned up the peeling
paint. Mr. S. asserted that he would undergo an assessment to determine whether he had a substance abuse problem requiring treatment. He also agreed to undergo random testing for illegal drugs and alcohol, and to cooperate with preventive services and ACS supervision.
By order dated August 25, 2016, this Court entered a finding of neglect against Equashaw W. The finding was based on the determination that the problems leading to a prior finding of neglect as to another child of the mother, not involved in the instant case, were sufficiently proximate in time to reasonably support the conclusion that the conditions that resulted in the prior finding continued to exist.
On August 29, 2016, ACS filed a neglect petition against Mr. S. The petition alleged a cause of action for neglect based on Mr. S.'s alleged alcohol and drug use (Docket No. NN-45346/16). By order dated September 21, 2016, the Court granted Mr. S. an order of filiation as to Tahnyla. By dispositional order dated November 1, 2016, against Equashaw W., this Court released Tahnyla to Mr. S. with 12 months of ACS supervision (Docket No. NN-034563/16).
By order dated April 3, 2017, this Court granted Mr. S. an Adjournment in Contemplation of Dismissal (hereinafter, "ACD"), on consent of all counsel. The ACD was for a six-month period and required that Mr. S. cooperate with ACS supervision, ensure that Tahnyla attend day-care, comply with preventive services, submit to random screenings and test negative for illegal drugs and alcohol.
On April 4, 2017, Equashaw W. gave birth to a child named Quadir S. Quadir tested positive for cocaine at birth. On April 4, 2017, ACS filed a neglect petition against Equashaw W. (Docket No. NN-08129/17). The petition alleged a cause of action based on substance abuse, derivative neglect, and the mother's failure to cooperate with the provisions of prior dispositional orders. ACS asserted that Ms. W. had evidenced a fundamental flaw in her understanding of the duties of parenthood sufficient to support the conclusion that the problems leading to the prior findings and dispositional orders continued to exist.
On April 5, 2017, Mr. S. filed paternity and custody petitions as to the child, Quadir S. (Docket Nos. P-08177-17; V-08181/17). ACS reported that Mr. S. had cooperated with the terms and conditions of the ACD. On April 13, 2017, the child, Quadir, was temporarily released to the custody of Mr. S. Mr. S. completed a drug program, providing a certification of completion on May 1, 2017. He attended an after-care program where he was tested weekly. He cooperated with preventive services and participated in parenting coaching.
When Tahnyla and Quadir were in their father's custody, they attended all medical appointments. During that period, ACS wrote that Tahnyla and Quadir During that time, ACS described Tahnyla as "a happy child" and indicated that Quadir was "growing and feeding well." He provided for them, ensured that Quadir had enough formula and pampers, and that the children had adequate clothing and sleeping arrangements. Mr. S.'s parenting coach reported that he was "doing well with the children." The coach described Mr. S's interaction with the children in positive terms.
On May 26, 2017, Mr. S. went to Virginia. While he was away, Quadir and Tahnyla were placed in respite care. While Mr. S. was in Virginia, he and Alicia R. were married. On June 11, 2017, Mr. S. returned to New York. They began residing together in New York City on June 14, 2017. Ms. R. had three children of her own; Isaiah, Javion and Kenneth. ACS reported that Ms. R. had no criminal or child protective history.
By order dated June 26, 2017, the ACD for Mr. S. was extended on consent until March 3, 2018. After he returned to New York, Mr. S. resumed his after-care program and on June 27, 2017, caseworkers visited the home and saw all family members. ACS noted that the children appeared well cared for and that they were receiving all necessities from Mr. S. and Alicia R.
Approximately four months later, on October 3, 2017, ACS filed petitions pursuant to Family Court Act § 1022, requesting pre-petition removals and remands of the five children in the care of Mr. S. and Ms. R. (Docket Nos. NN-22392-96/17). The pre-petition applications were based on the assertion that the child, Tahnyla, was a severely and repeatedly abused child who had been admitted to the hospital and diagnosed with hypoxic brain injury
and retinal hemorrhaging. The child's prognosis was "poor." By order dated October 3, 2017, the Court granted ACS's application and ordered the removal and remand of all of the children.
On October 6, 2017, ACS filed petitions against Mr. S. and Ms. R. alleging severe and repeated abuse (Docket Nos. NA-22706-10/17). The petitions alleged that on October 1, 2017, Tahnyla suffered multiple unexplained neurological injuries
, including but not limited to subdural hemorrhages, retinal hemorrhages, neurological damage and hypoxic ischemic brain injury. As a result of these injuries, Tahnyla died on October 3, 2017. ACS alleged that, according to hospital personnel, the explanations provided by Mr. S. and Ms. R. were inconsistent with the nature and extent of Tahnyla's injuries. ACS alleged in the petitions that, because of the severe abuse of Tahnyla S., Mr. S. and Ms. R. demonstrated a depraved indifference to human life and that, as a result, the children, Quadir, Kenneth, Isaiah, and Javion, were also severely abused, abused and/or neglected children.2
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