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In re Virginia T.F.

Family Court, Queens County

March 10, 2017

In the Matter of Virginia T.F. A Child Under Eighteen Years of Age Alleged to be Neglected
v.
Brittany O'L.-F. Ruperto F., Jr., Respondents.

          For the Petitioning Agency, Administration for Children's Services by SACC Jessica Ann Guilbeault;

          For the Respondent Mother, Center for Family Representation by Nicholas Bonham appearing pursuant to practice order under the supervision of Julie Suh;

          For the Respondent Father, Terrence Joseph Worms, Esq.; Attorney for the Subject Child Virginia T.F., the Legal Aid Society - Juvenile Practice Division by Andrew Thomas Ford.

          OPINION

          JOHN M. HUNT, JUDGE

         PROCEDURAL HISTORY

         On May 19, 2015, under Docket Number NN-09480/15, the Administration for Children's Services (hereinafter "Petitioning Agency" OR "ACS"), filed a petition pursuant to New York State Family Court Act (hereinafter "FCA") § 1012 against Brittany O'L.-F. (hereinafter "Respondent Mother" or "mother") and Ruperto F., Jr. (hereinafter "Respondent Father" or "father") (hereinafter collectively "respondents" or "parents") with respect to Robin T.F. (hereinafter "Robin"), born in May, 2015. The petition alleged inadequate supervision and guardianship. Amongst the allegations against the Respondent Mother were the following: (1) that upon Robin's birth, both she and Robin tested positive for marijuana; (2) that since the she was fifteen years of age, the Respondent Mother has been using marijuana; (3) that she suffers from mental illness for which she has been hospitalized, but has failed to engage in mental health treatment; and, (4) that after a hysterical outburst, she discharged herself from Jamaica Hospital against medical advice. Amongst the allegations against the Respondent Father were the following: (1) that he was aware of the Respondent Mother's marijuana use but was nevertheless planning to care for Robin with her; (2) he supplied the Respondent Mother with marijuana even during her pregnancy; (3) that he suffers from mental illness but had discontinued some of the medication prescribed to help him sleep; and, (4) that since December, 2014, he missed one or two of his mental health treatment appointments. The petition also alleges inadequate shelter against the Respondent Mother and the Respondent Father; in that, there were "many flies through the home, including many flies near the proposed bedroom for [Robin]." On October 16, 2015, pursuant to New York State Family Court Act § 1051(a), the Honorable Connie Gonzalez (hereinafter "Judge Gonzalez") issued a fact-finding order against the Respondent Mother and the Respondent Father. See Order of Fact-Finding (Gonzalez, 10/16/15), Queens County Family Court Docket Number NN-09480/15. On June 28, 2016, Judge Gonzalez issued a dispositional order in the matter. See Order of Disposition (Gonzalez, J., 06/28/16), Queens County Family Court Docket Number NN-09480/15. The dispositional order directed the parents, inter alia, to comply with mental health treatment, to complete a substance abuse program, and to comply with random drug screens. See id.

         On August 24, 2016, the Petitioning Agency filed a second petition against the Respondent Mother and the Respondent Father. The second petition alleges derivative neglect; to wit, that the Respondent Mother and Respondent Father, inter alia, suffer from mental illness and fail to comply with treatment such that it affects the care of their afterborn child, Virginia T.F. (hereinafter "Virginia"), born in August, 2016. On February 1, 2017, the Petitioning Agency filed an amended petition. The amended petition added allegations against the Respondent Mother and the Respondent Father regarding events that occurred after the initial petition's filing date. Amongst the added allegations against the Respondent Mother were the following: (1) that she had missed multiple sessions of the substance abuse program into which she had been ordered; (2) that she left Samaritan Village, a "mother-daughter" program, which she had agreed to enter; and, (3) that she withdrew her releases in violation of her dispositional order such that her mental health provider could not obtain adequate information about her treatment. Amongst the allegations against the Respondent Father were the following: (1) that he routinely left Virginia with her paternal grandfather for days at a time without notice; and, (2) that in violation of a court-issued order of protection, he left Virginia in her paternal grandmother's home, which ACS had not cleared, and where he knew that the Respondent Mother was residing. On March 2, 2017, pursuant to the Queens County Family Court trial part protocol, the trial in the "afterborn" matter was assigned to the Court. [1] On that same date, the trial commenced.

         THE EVIDENCE

         The Petitioning Agency's sole witness was Child Protective Specialist, Cynthia Gallardo (hereinafter "Ms. Gallardo"). The Petitioning Agency provided as documentary evidence, an oral report transmittal (hereinafter "ORT") to the State Central Registry, and the Court took judicial notice of relevant court orders and decisions. The Respondent Mother appeared on the first day of trial but, after disrupting the proceeding, she thereafter willfully absented herself from the courtroom and was not seen for the rest of the trial. The Respondent Father was present throughout, but did not testify on his own behalf.

         Ms. Gallardo testified that, upon the original petition's filing, Virginia was not ordered removed from her parent's care. Neither that petition, nor the amended petition, make reference to that fact, or ACS's subsequent failed efforts to seek a remand of Virginia to foster care. Virginia is currently living with her paternal grandfather, with her father's consent, under ACS supervision. Ms. Gallardo candidly admitted that ACS did no pre-natal planning with the parents nor did ACS assist the parents in anyway to find housing. Rather, it appears, ACS's first and only response to the family's needs was to file a petition and seek to place Virginia in foster care with her sister, Robin. Ms. Gallardo testified that her only observation of Virginia and her mother together was in the hospital at the time of Virginia's birth. She told the Court that at that time, just days before the original petition's filing, the Respondent Mother was in compliance with all services to which she was referred in connection with the disposition in Robin's case. Ms. Gallardo testified that the parents were then living in a family shelter and had a housing voucher. She further testified that the Respondent Mother had completed a parenting skills program, re-engaged in outpatient mental health services with a therapist, and entered in out-patient drug treatment. The Petitioning Agency adduced no evidence of any kind as to the Respondent Father's compliance or lack of compliance with any service plan.

         Ms. Gallardo did testify that in September, 2016, the Respondent Mother relapsed. This occurred was just weeks after the original petition's filing and at a time when both parents were still living with Virginia in the family shelter where they had been residing when Virginia was born. According to the Respondent Mother's statements to Ms. Gallardo, she felt "overwhelmed and sad, " "very frustrated, struggling, upset with [the father's] parenting style." The Respondent Mother stated that after an argument, she left Virginia with the Respondent Father and proceeded to "drink and smoke marijuana" over a period that appears to have extended from the evening of September 26, 2016 until the following morning. During this twenty-four hour period, the Respondent Mother reportedly missed a group session held by her substance abuse program.

         Ms. Gallardo testified that she was aware of one substance abuse screen at the end of September, 2016, after which the Respondent Mother tested positive for alcohol and marijuana, which is consistent with the Respondent Mother's admitted relapse. An earlier test in March, 2016, at Samaritan Village, was negative. There was no other evidence of the Respondent Mother's substance abuse. With respect to the specific mental health concerns raised in both the original petition and the amended petition, Ms. Gallardo conceded that she never personally referred the Respondent Mother for a mental health evaluation and that she had no knowledge of any hospitalization during the pendency of the proceedings involving the Respondent Mother.

         As a result of the Respondent Mother's relapse in September, 2016, and prior to the amended petition's filing, the Respondent Mother's contact with Virginia was limited by a precautionary order of protection to agency supervised visitation. Ms. Gallardo testified that the Respondent Father told her that he thereafter knowingly permitted the Respondent Mother to have contact with Virginia in violation of the order of protection's conditions for contact. Although she herself had no personal knowledge of any contact between the Respondent Mother and Virginia, Ms. Gallardo stated that the Respondent Father admitted allowing Virginia to stay her paternal grandmother despite being aware that the Respondent Mother was residing in that home which ACS had found unsuitable for an infant. According to Ms. Gallardo, the Respondent Father also admitted to leaving Virginia with her paternal grandfather because he could not find any other child care.

         LEGAL ...


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