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NYCCS moved to reopen the hearing

A child was born to Respondent in September 2006 with a positive toxicology to cocaine. She was premature, underweight and in respiratory distress. No father was named on the birth certificate, however, the mother has identified someone as the child’s father.

A New York County Criminal attorney said that in October 2006, the New York Child Services (NYCCS) filed a neglect petition against respondent. The petition alleged that respondent and the baby both tested positive for cocaine on the date of the birth, that respondent was not regularly and voluntarily participating in a drug treatment program, that respondent had no stable means of support or residence, that she failed to make any plans for the child, that she only visited the child in the hospital once, that she provided no contact information and that her whereabouts were unknown.

NYCCS requested and the Court granted a remand of the child. Pursuant to Family Court Act §1017, the Court directed NYCCS to conduct an immediate investigation of all of the family members who had expressed an interest in caring for the child, including the maternal aunt, the maternal grandmother and the maternal grandfather. Shortly thereafter, NYCCS certified the child’s maternal aunt and her fiancé, as kinship foster parents and the child was placed in their home.

The child was assessed for Early Intervention. She was initially referred for services, however, services were soon discontinued due to her “tremendous developmental improvements”. Thereafter, the child started to developed age — appropriately and no additional services were needed. She received regular medical care and was described as “healthy and stable”. The agency reported that she did not have any medical problems.

In May 2009, respondent gave birth to her second child. Three days later, a planning conference was conducted. During that conference, respondent stated that she did not want the child placed with Ms. D. because her sister used drug.

Thereafter, NYCCS filed a second neglect petition against respondent. The petition alleged that respondent and the child both tested positive for cocaine on the date of the birth, that respondent was not regularly and voluntarily participating in a drug treatment program, that respondent had left her drug treatment program in February 2009, and that she admitted to using “crack” cocaine three times per week during her pregnancy and three days before the birth of the child. NYCCS requested and the Court granted a remand of the baby.

Respondent appeared in Family Court asking that the child be placed in her home. She denied the allegations of drug use and volunteered to take a drug test. The test was conducted by Kings County Family Treatment Court and was positive for marijuana possession and use. Thereafter, Respondent’s fiancé was asked to submit to a drug test and he also tested positive for marijuana. As a result, an ORT was called into the New York State Central Registry. The Child was immediately removed from respondent’s home without notice or a hearing, and placed in non-kinship foster care with the other child.

By order to show cause, NYCCS moved to reopen the hearing to allow for the introduction into evidence of test results from the Treatment Center, indicating that respondent tested postive for marijuana on the first day she was tested by the Center. In addition, NYCCS sought to introduce into evidence an article which was annexed to the order to show cause. The article, citing numerous scientific studies, indicates that the length of time an individual may continue to test positive for marijuana after use can range from several days to as long as 67 days. The article cites numerous factors that can affect the length of time marijuana can be detected in urine including the drug dose, the drug’s strength, the route of administration, the frequency of use, the duration of use, the user’s metabolism rate, the test’s sensitivity and the test’s specificity.

The Family Court retains the statutory authority to modify or terminate any order entered during an article 10 proceeding. Family Court Act § 1061 grants the court the authority to “stay execution, of arrest, set aside, modify or vacate any order issued in the course of a proceeding under this article” based on “good cause shown and after due notice,” on the court’s “on its own motion, on motion of the corporation counsel the petitioner, or on motion of the child or on his behalf, or on motion of the parent or other person responsible for the child’s care.”

In addition, Family Court Act § 1062 provides specific authority for the court to grant an order terminating a foster care placement. The statute specifically provides that, in addition to the child’s parent or other person responsible for the child, a petition to terminate placement may be brought by “any interested person acting on behalf of a child.” That provision has been interpreted as including other relatives, the Attorney for the Child and the guardian ad litem.

These statutory provisions express a strong Legislative policy in favor of continuing Family Court jurisdiction over children and their families so that the court can do what is necessary in the furtherance of the children’s welfare. They provide the criminal court with continuing jurisdiction to modify or vacate any dispositional order and terminate any foster care placement. This authority is essential if the court is to meet its continuing responsibility to protect the best interests of the children.

Faced with a request to terminate placement, the court is obligated to promptly determine whether a hearing should be conducted and, if so, to conduct the hearing and determine whether continued placement serves the purposes of article 10. If the court determines that continued placement does not serve the purposes of article 10, the court is required to discharge the child from the custody of the agency.

Considering these standards in light of the facts at bar, the Court finds that “good cause” has been shown. In the instant case, NYCCS removed the child, who was then two and one-half year old, from the only home she had ever known without notice or a hearing. That move was undertaken in spite of the fact that the drug agency itself had concluded that the home was loving, supportive, nurturing, safe and stable and that the child had bonded with her kinship foster parents who both loved her as if she were their own daughter and who provided for all of her needs. In the view of this Court, these facts are sufficient to satisfy the requirement for a showing of “good cause.”

Having found “good cause” to consider modification of the prior order extending placement, the court must determine whether continued placement serves the purpose of Family Court Act article 10. The paramount purpose of article 10 is to “help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being”. Accordingly, the Court must determine whether the child’s continued placement in non-kinship foster care will serve to protect her from “injury or mistreatment” and “safeguard her physical, mental, and emotional well-being.”

In the instant case, the Court has evaluated the best interests and safety of the child and determined that she would be at risk of neglect if returned to respondent. To date, respondent has not successfully completed a drug treatment program and remained drug free. Indeed, after she was initially released from prison, she violated her parole, a warrant was issued for her arrest and she was eventually rearrested and again incarcerated. Thereafter, she continued to test positive for cocaine and marijuana and failed to cooperate with referrals to drug treatment programs.

The Court has considered the need for stability in child’s life. Toward that end, the Court recognizes that placement or custody should be established on a long-term basis whenever possible since long-term stability is presumably in the best interests of the child. In the instant case, this factor supports the return of the child to the home of the maternal aunt where the child spent 30 months in a safe, stable, loving and nurturing environment.

The Court concludes that a direct placement of the child in the home of the maternal aunt is a more appropriate disposition than a final order of custody. Respondent mother continues to need services. Her parental rights have not been terminated and it is unclear whether the agency intends to proceed with the previously filed termination petition concerning the child, which they may do even if the child is directly placed with the maternal aunt. Moreover, since extraordinary circumstances were neither pled nor proved, a final order of custody could not be entered at this point in the proceeding. Finally, a direct placement will allow NYCCS to continue to monitor the home since the child cannot be directly placed in the custody of the maternal aunt, unless she consents to the jurisdiction of the criminal court, something that she has already agreed to.

Based on the evidence adduced during the hearing, the Court denies the maternal aunt’s petition for custody of the second child with leave to renew during the dispositional hearing on her case. In certain respects, the children are not similarly situated. Although the first has already closely bonded with the maternal aunt and her family, the second has not. In addition, although long term stability for the first requires that she be returned to the home of the maternal aunt, the same is not necessarily true for the second.

Accordingly, it is ORDERED, that the remand of the child is terminated and she is directly placed with the maternal aunt under the supervision of NYCCS.

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