IN RE: M.A. (2024)

The respondent mother R.A.'s application, pursuant to Family Court Act (FCA) § 1028, for the release of the subject child M.A. to her care and custody is granted as the court finds that the subject child would not be at imminent risk to her life or health if returned to R.A. with certain court orders in place. This determination is based on the testimony of witnesses and evidence presented at the hearing, including R.A.'s own testimony.

On January 23, 2024, the petitioner, the Administration for Children's Services ("ACS"), brought a neglect petition against R.A. The petition alleges that R.A. fails to provide the subject child (M.A.) with proper supervision and guardianship in that she suffers from a mental illness which impairs her ability to care for M.A. Specifically, the petition alleges that on January 14, 2024, a bystander witnessed R.A. out in the cold with the subject child, who was not properly dressed for the weather, and called the police. The petition further alleges that R.A. and the subject child were transported to the hospital where R.A. reported that there were cameras in her room and microwave and that "they" are hacking into her phone. The petition alleges that R.A. was thereafter admitted to the hospital's psychiatric ward on January 17, 2024, having been diagnosed with non-specified psychosis, with no estimated discharge date, and leaving no one to care for the subject child.

At the initial intake appearance on January 23, 2024, the subject child was remanded to the care and custody of the Commissioner of ACS. At the next court appearance on February 21, 2024, the Court was made aware that R.A. had been released from the hospital on February 20, 2024. On June 17, 2024, R.A. requested a hearing pursuant to FCA § 1028. Based on the allegations in this case, the Court ordered an imminent risk assessment of R.A. to be conducted by Family Court Mental Health Services ("MHS") pursuant to FCA § 251, to occur while the 1028 hearing was ongoing. After the clinicians met with R.A., observed a visit between R.A. and the subject child and spoke with R.A.'s therapist, MHS prepared a report for the Court.

Pursuant to FCA § 1028, after a hearing, the court shall release a subject child to the care of the moving respondent parent unless the petitioner can establish, by a preponderance of the evidence, that returning the subject child to the respondent parent's care presents an imminent risk to the child's life or health. As part of its assessment, "a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal" (see Nicholson v Scoppetta, 3 NY3d 357, 378 [2004]). "It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests" (Id.).

After a full hearing, the court grants R.A.'s application pursuant to FCA § 1028 as ACS has not established, by a preponderance of the evidence, that releasing the subject child to R.A. presents an imminent risk to the subject child's life or health that could not be mitigated with the issuance of certain court orders. At the hearing, the ACS Child Protective Specialist ("CPS") credibly testified about the concerns that led to ACS filing the neglect petition against R.A. These concerns stem from the incident alleged in the petition, that R.A. and the subject child were observed outside in January, dressed inappropriately for the cold weather. R.A. and the subject child were subsequently transported to the hospital, where R.A. exhibited bizarre behaviors and spoke incoherently. R.A. was then psychiatrically evaluated and hospitalized for approximately one month, while the subject child was placed in the care of the Commissioner of ACS. CPS testified in detail about conversations with hospital staff, including a social worker, who informed her that R.A. was diagnosed with non-specified psychosis and prescribed medication to treat her symptoms.

The Graham Windham case planner credibly testified about the mental health treatment R.A. has been receiving upon release from her psychiatric hospitalization. The case planner testified that R.A.'s service plan is focused on R.A.'s mental health, and includes psychiatric evaluations, therapy and medication management. The case planner testified that R.A. has enrolled in outpatient treatment at Samaritan Village, where she received a diagnosis of adjustment disorder. At Samaritan Village, R.A. attends weekly therapy. The case planner further testified that following R.A.'s intake assessment at Samaritan Village, continued medication was not recommended. Most notably, the case planner testified that the only current barrier to reunification of R.A. and the subject child was R.A.'s lack of steady housing, not her mental health.

The respondent mother R.A. also credibly testified at the hearing. The Court credits R.A.'s testimony and insight into the situation that led to the filing of the neglect petition, as well as her demonstrated commitment to treating and better understanding her own mental health. During her testimony, R.A. appeared coherent, focused, eloquent and thoughtful. She candidly shared with the Court that at the time of the underlying incident in January 2024, she was going through what she now recognizes as a mental health crisis. At the time of the January 2024 incident, she had limited family support, no support from the subject child's father, had very recently given birth, and had also recently entered the shelter system. R.A. acknowledged that she felt alone and did not fully understand the customs and various systems of her community. R.A. acknowledged her psychiatric hospitalization and stated that she was prescribed Lithium while hospitalized. She further testified that upon being evaluated at Samaritan Village as part of her intake assessment for outpatient services following her hospital discharge, her psychiatrist did not recommend that she continue the medication. R.A. credits her weekly therapy sessions at Samaritan Village with helping her to better understand her mental health and how to manage her stress, noting that she has learned to recognize the signs that her mental health is deteriorating. R.A. shared that she now understands how to address these concerns, unlike in the past when she did not fully understand what she was going through or how to deal with it, and has worked to develop coping mechanisms. She testified that she now has a network of support, including family members, her therapist and a psychiatrist, that she did not have before and that she no longer feels so alone. R.A.'s testimony demonstrated profound insight into her mental health issues and that, with assistance, she is equipped to cope with mental health challenges in the future.

Finally, the Court is in receipt of the clinical report provided by MHS. The MHS report highlights R.A.'s gained insight in detail and speaks to the progress she has made since the filing of this case. In particular, the MHS report notes the many risk factors that came together at the time of the January 2024 incident that likely contributed to R.A.'s mental state at that time. The clinicians opine in the report that due to R.A.'s lack of history of mental health symptoms and the outside factors present in her life at the time, the January 2024 incident was likely an isolated one. The MHS report also includes collateral input from R.A.'s therapist, who describes R.A.'s regular therapy attendance as "amazing" and noted that R.A. has been able to apply strategies learned through therapy during visitation with the subject child. She also confirmed that R.A. is re-evaluated monthly by a psychiatrist at Samaritan Village, in case her need for medication changes. The therapist also reported that R.A. is "a self-advocate who is reaching out to secure the support she needs to ensure the subject child's safety and care." In addition to interviews with R.A. and collateral contacts, MHS observed a visit between R.A. and the subject child. As noted in the report, throughout the visit, R.A. and the subject child's bond and attachment was apparent and R.A.'s behavior toward the subject child was appropriate, safe and loving. Finally, the MHS report notes that R.A. has complied with all services and orders of the court and finds that it is highly likely that she will continue to do so in the future.

As required by the Court of Appeals in Nicholson, this Court has balanced the risk of harm from removal of the subject child from her mother against any risk of harm if she is returned. In considering such a balance, this Court finds that the harm of removal of the subject child, a nine-month-old baby, from R.A. outweighs the risk of harm to the subject child if she were to be returned to R.A.'s care. The MHS report addresses this balance directly and offers the opinion that, "given R.A.'s demonstrated commitment to complying with the programs and services to ensure the return of her daughter [and] her present engagement in mental health services, the risks are low at this time. This is especially notable given the high risks to the subject child's ability to attach and bond with her mother should she remain for an extended period of time outside of her mother's care." The MHS report further states that R.A.'s proactive approach toward addressing her mental health symptoms has lowered the risk posed to the subject child. Further, because of the dedication and hard work she has put into prioritizing her mental health, R.A. is now equipped with her own newly-gained understanding, and recognition, of her mental health symptoms. Finally, the Court notes that throughout the case, the visits between R.A. and the subject child have been consistent, and have gone very well, without any safety concerns. Additionally, during the pendency of the hearing, the Court permitted R.A. to have one overnight visit a week with the subject child at a hotel nearby to the foster home, in case any issues arose. The weekly overnight visits occurred without any incident and when R.A. requested an expansion to consecutive overnight visits each week, neither ACS nor the attorney for the child opposed the application. It is the Court's view that a release of the subject child conditioned on R.A.'s continued compliance with her mental health services as well as cooperation with ACS supervision would mitigate any risk to the subject child.

It is hereby ORDERED that the subject child is released to the respondent mother R.A. under the following conditions:

• The respondent mother is to continue her engagement in mental health services, including weekly therapy and monthly psychiatric assessments, and follow all recommendations therefrom, including medication management if clinically indicated;

• The respondent mother is to comply with preventive services;

• The respondent mother is to comply with ACS supervision, including announced and unannounced visits;

• The respondent mother is to sign all HIPAAs;

• The respondent mother is to comply with all reasonable referrals, on notice to counsel;

• ACS is to expeditiously clear resources for child care for the respondent mother;

• ACS is to offer the respondent mother a child care voucher;

• ACS is to make a referral for the respondent mother to the GABI program and follow through with that referral;

• ACS is to accompany the respondent mother to PATH in Manhattan on September 5, 2024 and advocate for a placement for her in specific boroughs;

• ACS is to explore the respondent mother's eligibility for a foster care discharge grant and if ineligible, help the respondent mother to secure the follow supplies: pack and play, bedspread, highchair, car seat, educational toys, baby food, diapers, wipes and seasonally appropriate clothing, specifically, a winter jumpsuit.

This constitutes the decision and order of the court.

DATED: September 4, 2024

New York, NY

E N T E R:

Hon. Yael Wilkofsky, J.F.C.

Yael Wilkofsky, J.