Here the boys still require stability. The Court commends the grandparents L.C. and L.C. for stepping in and assisting in caring for the boys. Notably all six boys were legally returned to M.H.S. who received a suspended judgment. Yet the fact remains, and both M.H.S. and the grandparents L.C. and L.C. acknowledge, that the current living situation is evolving. Two of the six boys, M.N. and T.W., are not biologically related to the grandparents L.C. and L.C. or M.H.S. and there was some evidence that Respondent's family in Arkansas may petition for custody. Additionally both M.N. and T.W. express that they want contact with Respondent.
Respondent was the primary caretaker for the boys since their births. This is not a termination of parental rights proceeding, Respondent remains the boys' mother and the goal for this case is "return to parent." While Respondent will be incarcerated for thirteen years and six months (13 1/2 years) when the boys will have reached or will be close to the age of majority, contact between Respondent and the boys will afford them a relationship — albeit not a traditional mother/son relationship (see Matter of Jovan J., 7 Misc 3d 1028[A], 2005 NY Slip Op 50795(U), *2 ). Respondent is currently engaged in mental health treatment and testified that she will commence the other required treatment immediately upon her permanent placement at BH Correctional Facility.4 The boys' therapist did not rule out communication between Respondent and the boys but indicated only the necessity of mental health treatment for Respondent to communicate appropriately with the boys about their situation. The Law Guardian and even Petitioner agree that the issue of visitation could be revisited upon Respondent's completion of treatment. Any visitation would be supervised and any communication between Criminal Respondent and the boys monitored. The Court envisions an on-going check on the progress of the visits and the boys' conditions. The dispositional plan shall be fashioned accordingly.
Petitioner submitted a proposed dispositional plan to the Court which included an order that Respondent:
Have no contact in any form whatsoever with the children [sic] place of business, school, day care or any place they may be found until recommended by the children's therapist in conjunction with [Petitioner] and the Law Guardian. The forms of contact prohibited by this Order shall include, but not be limited to, personal, telephone, letters, notes, video or audio tapes and third party communications.
A Court cannot delegate its authority to determine issues involving the best interests of the children to a mental health professional (Matter of Sullivan County Department of Social Services v. Richard "C", 260 AD2d 680 [3d Dept 1999], lv dismissed 93 NY2d 958 ; see also Kathleen M.K. v. Brian S.R., 24 AD3d 1273 [4th Dept 2005]; Hameed v. Alatawaneh, 19 AD3d 1135 [4th Dept 2005]). This Court thus certainly cannot defer its authority to the children's therapist, Petitioner and Law Guardian as detailed in the proposed order of protection. This order of protection shall be stricken in its entirety. In its place Petitioner is ordered to re-draft an order of protection prohibiting contact between Respondent and her step-sons, M.H. and J.H. only.
Petitioner shall also craft a compromise allowing Respondent contact with her biological sons, M.N., T.W., C.H. and N.H.. Respondent is serving a sentence of thirteen years and six months (13 1/2 years) in BH Correctional Facility — located approximately five hours away. M.N., T.W., C.H. and N.H. shall be afforded at least bi-monthly supervised visits with their mother balancing their need and desire to see their mother with the burden on them in making such a long trip (see Davis v. Davis, 232 AD2d 773 [3d Dept 1996]). Respondent and her biological sons likewise shall be permitted written correspondence provided that such correspondence is monitored to ensure its appropriateness.
Respondent must engage in mental health treatment and she should not discuss with her sons what happened until both she and the boys are able to do so in an appropriate therapeutic manner. Respondent is currently engaged in mental health treatment. Respondent shall engage in the other proposed treatment services. Likewise, M.H. and M.N. must continue with therapy. Petitioner shall arrange for T.W. to begin therapy and shall have an assessment performed to determine whether N.H. and C.H. should begin some form of therapy as well.
This decision does not in anyway affect the criminal sentence — including the orders of protection — imposed by County Court. It is Respondent's burden to petition that court for modification.
Now, therefore, it is hereby
ORDERED that the Order of Protection in the proposed dispositional plan is stricken in its entirety; and it is further
ORDERED that an Order of Protection be redrafted as concerning M.H. and J.H.; and it is further
ORDERED that Petitioner shall submit a revised dispositional plan within fifteen (15) days consistent with this decision; and it is further
ORDERED that Petitioner shall arrange for T.W. to begin therapy and shall obtain a professional assessment regarding whether C.H. and N.H. should begin some form of therapy.
Pursuant to §1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in Court, thirty-five days from the mailing of the order to the appellant by the Clerk of the Court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.
1. M.H.S. eventually consented to a neglect finding and received a suspended judgment. By order entered October 11, 2006, the children were returned to M.H.S. and grandparents L.C. and L.C. currently have extensive visitation with the children from Sunday until Tuesday morning.
2. See Spenser v. Spenser (128 Misc 2d 298, 304-305 [Fam Ct, Queens County 1985]) for an interesting discussion of the complication of conflicting orders of protection issued by other courts as they affect custody and visitation orders issued by family court.
3. Family court later summarily terminated respondent father's parental rights and the Third Department affirmed based again, in part, upon the criminal order of protection and because respondent was not challenging the protective order (Matter of Curtis "N", 302 AD2d 803, 804-805 [3d Dept 2003], lv dismissed 100 NY2d 535 ). The determination was also based on the facts that respondent failed to plan for his children's future and did not take any responsibility for sex crimes abusing his daughter.
4. The Court presumes that Respondent has commenced with the other treatment at this time as the Court dispensed with her presence at the conclusion of this hearing in order for her to return to BH Correctional Facility.