Matter of Yan Ping Z.

• Decision Date: 31 December 2001
• Citation: 737 N.Y.S.2d 239,190 Misc.2d 151
• Parties: In the Matter of YAN PING Z., a Child Alleged to be Neglected.
• Court: New York Family Court

190 Misc.2d 151

737 N.Y.S.2d 239

In the Matter of YAN PING Z., a Child Alleged to be Neglected.

December 31, 2001.

Joshua Witkin, Brooklyn, for petitioner.

Michael J. Neff, New York City, for Brookwood Child Care.

Jacqueline Bullock,

Brooklyn, for respondent.

Legal Aid Society, Brooklyn (Karen Simmons of counsel), Law Guardian.

OPINION OF THE COURT

NORA FREEMAN, J.

The current and past litigation concerning the child Yan Ping Z. (also known as Lisa and hereinafter referred to as Lisa) is so extensive that a thorough review of the history of the various petitions is necessary in order to provide context for the court's rulings, which address the viability of the petitions alleging neglect and for termination of parental rights.

By order dated August 21, 2001 this court requested memoranda of law from all counsel concerning the effect on the current petitions of rulings made by another judge on an earlier neglect case, under docket No. N-10352/97. It was unclear to this court whether the allegations made in the three petitions and the rulings made by the first judge may have overlapped to some degree, and whether this court was precluded from entertaining the current petitions.

To summarize, the three petitions are as follows:

First: N-10352/97 Filed on May 7, 1997 by the Administration for Children's Services (ACS) alleging that Lisa's father, respondent Lin Hua C., had neglected her by abandoning her after his arrest on or about February 27, 1997 Second: B-6377/99 Filed on March 22, 1999 by Brookwood Child Care (Brookwood) alleging that Mr. C. had abandoned Lisa for the six months preceding the filing, and that accordingly his parental rights should be terminated Third: NA-17604/01 Filed on August 2, 2001 by ACS, alleging that Mr. C. had sexually abused Lisa before her placement in foster care in 1997; that he failed to contact ACS from November 2000 to August 2, 2001; and that he had not contacted or visited Lisa since 1997.

After two years of hearings before another judge, the first petition was dismissed on July 31, 2001. The findings included in that decision and order raise questions about the continued viability of the second and third petitions. After reviewing the memoranda submitted by ACS, the Law Guardian and respondent and the extensive record through July 31, 2001, this court concludes that ACS is precluded from litigating claims of sexual abuse that allegedly occurred before February 1997, but that the claims of abandonment from the period September 1998 to March 1999 (the petition to terminate parental rights, or TPR petition) and the claims of lack of contact with ACS and the child (the second neglect petition) may proceed.

The history of this extraordinary four-year litigation can only be summarized here. Lisa (and an older sister, now an adult and not before the court) were remanded to foster care on or about February 27, 1997, following the arrest of Mr. C. Lisa has remained in care, on "remand" status, continuously since then. Although precise dates are unclear, it is not disputed that Mr. C. was released from custody in the spring of 1997 and that he traveled to China (his own homeland, as well as Lisa's), telephoning her in April to tell her he was in China, where he expected to remain, and wishing her well. Mr. C. returned to the United States in July 1997, apparently having been extradited from Canada. He remained in a federal detention facility until November 2000, when he was released.

Counsel was appointed for Mr. C. in 1997, and (after the first withdrew) again in 1998. The fact-finding hearing on the 1997 neglect petition began in November 1999 and did not conclude until June 2001. The reasons for the long delays are not entirely clear, but the difficulties in locating Mr. C. and arranging for him to consult with counsel (via telephone and a Mandarin interpreter), as well as scheduling trial dates using telephone connections, were factors.

In April 2000, while the neglect fact-finding was underway, Mr. C. filed an order to show cause seeking visitation with Lisa, which would necessarily take place at his federal detention facility in New Jersey. ACS and the Law Guardian filed affidavits strenuously opposing visits, on the grounds that while in foster care Lisa had revealed that her father had beaten and sexually abused her before her removal in 1997; that she had experienced severe emotional problems requiring repeated hospitalization in psychiatric facilities; and that she was "deathly afraid" of him. The trial judge denied visitation on September 15, 2000, "with leave to renew." (The request was not renewed until the second neglect petition was filed in August 2001.)

In November 2000 Mr. C. was released from prison and was able to appear in court. The fact-finding concluded with summations in June 2001. The petition was dismissed in a seven-page written decision and order dated July 31, 2001. That decision did not mention the 1999 petition to terminate parental rights, which had remained pending throughout the two-year neglect trial. Nor did it direct Lisa's discharge from foster care.

Two days later ACS filed a new petition, based on the allegations of sexual abuse that had been alluded to in the affidavits filed in 2000, as well as more recent lack of contact with ACS. Upon filing, ACS requested and was granted a temporary remand for Lisa, in effect continuing the foster care status that had begun in 1997.

This court received the new neglect petition and the pending TPR petition on August 7, 2001, the prior judge having been transferred to another court. Upon preliminary review of the voluminous files the court, out of concern for possible issues of collateral estoppel arising out of the rulings made by the prior judge, requested memoranda of law from all counsel. Counsel's attention was directed to two questions:

(1) Whether ACS is barred from filing sex abuse charges in 2001 when (a) the allegations were known at least as early as January 2000, and (b) the 1997 petition was never amended; and

(2) whether factual findings made in the July 31, 2001 order dismissing the 1997 neglect case are binding on the court hearing the petition to terminate parental rights?

Claim Preclusion

Article 10 of the Family Court Act contains the statutory framework governing child protective cases. According to section 1011, the purpose of the article is "to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met." Family Court cases, although civil in nature, may subject a parent and child to grievous loss of a fundamental liberty interest, i.e., continuation of the parent's custody of the child. And although a parent charged with neglect does not face possible incarceration, many courts have recognized that the loss of custody may be of comparable import. (See Stanley v Illinois, 405 US 645.)

Despite the potential loss of fundamental rights faced by a parent charged with neglect, the Family Court Act contains neither a limitation of time in which charges must be filed, nor a speedy trial provision. Indeed, appellate decisions have upheld child protective prosecutions initiated up to eight years after the events alleged to have taken place. In Matter of Charles DD. (163 AD2d 744, 747 [3d Dept 1990]) the appellate court noted that, "[t]aking into consideration the broad mandate of the Family Court Act, the usual treatment of transgressions by limiting legal prosecutions thereof to a statutory period is unavailing in Family Court petitions and bears no statutory limitations. Family Court proceedings do not focus on penal sanctions but are instead directed to the protections of minors." A new petition may also be filed notwithstanding dismissal of an earlier case against the same parent, if the later petition presents "subsequent allegations of neglect not covered by the [earlier] petition" (Nassau County Dept. of Social Servs. [Jean G.], 225 AD2d 779, 781 [2d Dept 1996]), or "a completely different time period and a different service plan than were at issue in the previous * * * proceeding." (Matter of Jesus II., 249 AD2d 846, 847 [3d Dept 1998].) Even where the prosecution's conduct is offensive to ordinary standards of due process, dismissal of a protective petition is unwarranted, lest the trial court "abdicated its role as parens patriae." (Matter of Rhonda T., 99 AD2d 758, 759 [2d Dept 1984].)

While recognizing the paramount concern for protection of children and the absence of criminal sanctions, this court concludes that some respect for fundamental fairness must be afforded in child protective proceedings. In this case, although it had actual knowledge of the child's claims of sexual and physical abuse during the pending of the first neglect petition, ACS never sought leave to amend its petition to include those charges. Instead, it filed them after the first petition was dismissed. Since Family Court neglect prosecutions are not criminal proceedings, "double jeopardy" does not apply. But rules relating to issue preclusion or mandatory joinder of claims may.

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