Umani K., Matter of
| Decision Date | 22 April 1998 |
| Citation | 673 N.Y.S.2d 877,176 Misc.2d 708 |
| Parties | , 1998 N.Y. Slip Op. 98,282 In the Matter of UMANI K., a Child Alleged to be Abused. Huma K. et al., Respondents. |
| Court | New York City Court |
Alan Kudisch, Kew Gardens, for Huma K., respondent.
Alexander Carlin, New York City, for Naeem K., respondent.
Legal Aid Society, New York City (Peter Hart, of counsel), Law Guardian.
The ultimate issue presently before the Court is whether the child Umani K., d.o.b. 8/1/92, should be returned to the care and custody of his parents, the Respondents herein, or continued in foster care. F.C.A. § 1062 & 1055(b). In order to make that determination, the court must consider whether the conditions and circumstances that gave rise to the child's placement on September 11, 1995 have changed, whether the family services plan requires review, adjustment, or modification, the extent to which such plan has been complied with by the Respondents, and whether a further extension of that placement is consistent with the best interests of the child. F.C.A. § 1055(b)(iv)(A) & (B); SSL § 409-e.
After careful consideration of the evidence presented at the lengthy hearing held pursuant to both F.C.A. § 1055(b) and 1064, the Court issued an order on March 26, 1998 extending placement until September 10, 1998 with provisions for a trial discharge of the child by July 20, 1998. This decision now elaborates on the Court's finding that the Respondents' compliance with the directives of the Administration for Children's Services as well as their personal initiative in addressing the issues that led to the child's original placement require a change in the current order of placement. Consequently, the court also finds that the Administration for Children's Services has not met its burden of showing that continued placement is in the child's best interests. Matter of Ian S., 241 A.D.2d 981, 661 N.Y.S.2d 376 (4th Dept.1997); Matter of Sunshine Allah Y., 88
A.D.2d 662, 450 N.Y.S.2d 520 (2d Dept.1982); Matter of S.B., 165 Misc.2d 632, 629 N.Y.S.2d 1017 (N.Y.Fam.Ct., 1995). The Court makes this finding despite the serious nature of the underlying abuse finding, which involved the death of Umani's sibling.
The original child abuse action was initiated by the filing of petitions on December 28, 1994 involving two children, Zoltan K., born 6/29/93 and Umani K., born 8/1/92. The petition as to Zoltan abated when the child subsequently died. The remaining petition was amended on March 6, 1995, alleging that the respondent mother, Huma K., and respondent father, Naeem K., had allowed the abuse of their children, and that the respondent mother caused the death of one of the subject children, Zoltan. Throughout the pendency of the Family Court proceedings, the Respondent mother was incarcerated, but the Respondent father was never criminally charged with Zoltan's death.
After hearing on June 29, 1995, during which neither respondent testified nor presented any evidence, the Hon. Sara P.Schechter entered a finding of abuse against the Respondent mother:
based on proof that while in the Respondent-mother's care, child Zoltan sustained a fatal head injury for which the Respondent mother has offered no credible explanation.
Judge Schechter also entered a finding of neglect against the Respondent father:
in that the child had old bruises and marks from prior injuries about which Respondent father failed to make adequate inquiry although he did notice them.
(See, Order of Fact-Finding, dated June 29, 1995).
On September 11, 1995, Judge Schechter issued the following dispositional order:
On consent, placement [with] CSS for up to 12 months to reside with Great mat. aunt (sic) Annette A. Both parents to enroll in and complete parenting skills training. Resp. mother to participate in psychotherapy. Resp. father to cooperate with psychiatric evaluation and to participate in any therapy which may be recommended.
According to information provided to the Court, shortly after the dispositional order was entered in the Family Court the Respondent-mother pled guilty to Manslaughter in the Second Degree and was sentenced to time served, i.e. approximately 9 months, with five (5) years probation on condition that she attend and cooperate with psychiatric treatment.
On August 22, 1996, the respondent parents filed a joint Petition for Termination of Placement pursuant to F.C.A. § 1062, alleging that they had adhered to the court orders for parenting and psychotherapy and were ready to be "good parents to the child." (See, Petition for Termination of Placement). On September 9, 1996, the Petitioner Administration for Children's Services (hereinafter "ACS"), filed an untimely Extension of Placement petition pursuant to F.C.A. § 1055(b)(i) alleging that although the parents were cooperating and planning for their child Umani, ACS still requested a 12 month extension "to give the mother and father more time to complete all court orders and CWA (ACS) mandates so that we may discharge child to home at completion 1." (See, Petition for Extension of Placement, dated September 6, 1996, at paragraph 8).
Based on the history of the case as well as the Respondent mother's ongoing participation in therapy, ACS requested and the court ordered Mental Health Services (MHS) evaluations of the respondents. See, F.C.A. § 251. The MHS evaluations were completed and a joint hearing was commenced on both petitions on May 29, 1997.
In support of their request for an extension of placement, ACS presented the testimony of Dr. Maureen Gallagher, Ph.D. formerly of the Family Court Mental Health Services, Wendy Heilbronn, CSW from the In addition to the testimony of its witnesses, ACS also offered into evidence the Respondent father's MHS report (Petitioner's Exhibit 2), and psychological and psychiatric screenings of the child Umani (Petitioner's joint Exhibit 3). See, F.C.A. § 1052 and 1046.
Jewish child Care Association, and Wanda Ochshorn, the ACS caseworker. Dr. Gallagher's recommendations were that the Respondents "should continue in therapeutic treatment and on-going parenting skills training, with professionals dealing with forensic issues and denial of responsibility," that the Respondent mother "requires comprehensive services to include individual and group therapy, ongoing parenting skills training and vocational training" and that the Respondent father requires ongoing services to include "individual and group psychotherapy." (See, Petitioner's Exhibit 1, MHS report of Huma K. dated April 11, 1997 at p. 6). She stated that her primary concern continued to be the Respondent mother's failure to accept responsibility for Zoltan's death
The Respondent mother testified and was subjected to strenuous cross-examination by all counsel and the Court. The Respondent mother also presented the testimony of her treating psychiatrist, Dr. Kels Langsten, who treated her on a weekly basis for two years from September, 1995, and on a monthly thereafter. Dr. Langsten testified that the Respondent mother demonstrated appropriate concern and empathy for Umani and strongly recommended that the child be returned to her care. A compilation of his reports were admitted into evidence as Respondent mother's Exhibit B. The Respondent mother also introduced a letter from the Center for Comprehensive Health Practice, Inc. showing her extensive cooperation with her parenting skills program. (See, Respondent mother's Exhibit A).
The Respondent father presented the testimony of Dr. Kurasani, who evaluated him in 1995 and 1997 in his native language of Urdu. Dr. Kurasani's conclusion on each evaluation was that the Respondent father did not need further treatment. The Respondent father did not testify.
Despite the tragic and extremely serious nature of the underlying findings against the Respondent parents, the court is persuaded that they are currently able to care for the child Umani and that it is in his best interest to be returned to their care as soon as is practicable given the long separation. Matter of Sunshine Allah Y., supra; Matter of Ian S., supra. While neither parent has admitted to personally inflicting the injury that caused Zoltan's death, they have both taken ultimate responsibility for the child's injuries and subsequent death. In Re the C. Children, NYLJ February 5, 1998, p. 26, col. 3 (1st Dept.1998).
In reaching this decision, the Court is bound by the finding made by Judge Schechter that Zoltan sustained a fatal head injury while in the mother's care. Yet the Presentment Agency now demands an admission to murder from the Respondent mother prior to even considering reunification based upon its belief that the mother is in "denial". It would be improper to "retry" the underlying abuse case and make a finding that the mother intentionally murdered the child Zoltan.
Both the Administration for Children's Services and the Family Court have an obligation to reunify families. F.C.A. § 1055(c); S.S .L. § 384-b (1)(a)(ii & iii); S.S.L. § 423(1)(e); 18 NYCRR § 428.6(b)(6)(i), et seq. To accept the Agency's position that the mother must now both admit to intentionally killing the child and participate in "denial therapy" would effectively preclude reunification regardless of the extraordinary progress the Respondents have made. Such a position is improper given the existing findings in Family and Criminal court, and unreasonably coercive given the incentive of reunification.
The Court is satisfied that both Respondents accept responsibility for Zoltan's death, recognize the grossly inadequate parenting that caused it, and have successfully dealt with their deficiencies as parents to the extent that they no longer pose a danger to Umani.
The Court has reached this conclusion after...
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