PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER In the custody case before the court, for the reasons that follow, the court hereby awards sole physical and legal custody of the child to her father Robert R. This case has a lengthy history which spans many years and involves multiple proceedings. The family first became know to New York City Family Court on August 10, 2016 when a neglect petition was filed against mother, Denise S., as to the subject child, Dominique R., now age eight1. The child was removed from Denise S.’s care and remanded to the Commissioner of Social Services on the date of filing. Following a trial, on May 19, 2017, the Court (Hon. Jane Pearl) issued an order of fact finding and disposition, finding, inter alia, that facts sufficient to sustain the petition had been established based upon Denise S.’s two acute mental health episodes while the subject child was in Respondent Mother’s custodial care, which untreated mental health symptomatology placed the subject child at imminent risk of physical and/or emotional harm, and which mental health symptomatology may have been exacerbated by Denise S.’s substance use of synthetic marijuana. The Court adjudicated the subject child a neglected child, as defined in section 1012 of the Family Court Act, having been neglected by Denise S. The court also considered the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent(s) or other person(s) legally responsible, and placed the child in the custody of the Commissioner of Social Services of New York County until the completion of a permanency hearing, subject to the further orders of this Court. The Court reasoned that Denise S. required further mental health and substance abuse treatment services to enable safe reunification. The court further ordered that during the period of such placement, Denise S. was to remain under the supervision of a child protective agency, social services official, or duly authorized agency upon the following terms and conditions: (1) consistent participation in mental health treatment, including medication management services, if clinically indicated; and (2) completion of substance use/abuse treatment services, including aftercare and/or relapse prevention with [trying to avoid using "including" twice] random negative tests for alcohol and all illicit drugs and non-prescribed medication. The child remained placed with the Commissioner of Social Services until May 23, 2018. With respect to the custody and visitation history of this case, the child’s father, Robert R., first became known to New York City Family Court on May 29, 2014 when he filed a custody petition for the subject child, which he subsequently withdrew on June 6, 2014. He then re-filed for custody on July 8, 2014 and withdrew that petition on July 11, 2014. On January 6, 2016, Robert R. once again filed for custody of the child and such petition was dismissed without prejudice on February 10, 2016 for his failure to appear. On February 16, 2016, Robert R. again filed for custody of the subject child and on March 24, 2016 that case was transferred to Supreme Court in the Integrated Domestic Violence Part. Another petition for custody was filed by Robert R. on October 11, 2016 which was dismissed without prejudice on May 19, 2017. The instant custody case was initiated through a petition filed by Robert R. for custody of the subject child on July 21, 2017, during the pendency of the Article Ten case which had been filed against Denise S. She subsequently filed a cross petition seeking custody of the child on April 27, 2018, on which day a trial commenced. On May 23, 2018, a consent order was entered granting both parents an order of joint legal and physical custody with parenting time to be arranged between the parties. The court further terminated foster care placement and marked the child protective case off-calendar. On June 19, 2018, Robert R. filed a petition seeking a modification of the order of joint legal and physical custody. That petition was dismissed without prejudice for Robert R.’s failure to appear. On March 11, 2019, Robert R. filed another petition2 seeking a modification of the May 23, 2018 order of joint legal and physical custody. Robert R. also filed a family offense petition against Denise S. seeking an order that Denise S. stay away from him and the subject child. The Sheriff was directed to serve Denise S. with both petitions and the matters were adjourned to March 13, 2019 for return of service. On March 13, 2019, the court issued a temporary order of protection, ordering that Denise S. refrain from menacing, harassing or assaulting Robert R., stay away from him and not interfere with the care and custody of the child. In a Sheriff’s Certificate of Attempted Service dated March 26, 2019, Ruslan Shulyar, Deputy Sheriff of the City and State of New York, certified that service had been attempted on Denise S. and that it seemed that Denise S. was trying to evade service. Nonetheless, Denise S. did come to court on April 1, 2019 to seek sole custody of the subject child. On April 3, 2019, Robert R. filed a petition alleging that Denise S. had violated the temporary order of protection entered on March 13, 2019 in that she changed the locks to their shared residence and in that he had not been given access to the child since March 27, 2019. Of note, although the court had ordered the Administration for Children’s Services (ACS) to conduct an investigation as to the allegations, in a report dated April 2, 2019 ACS reported that neither parent allowed the worker access to the residence nor cooperated with the investigation. On April 8, 2019, Robert R filed an Order to Show Cause (OTSC). In his OTSC, he alleged that he had not seen or spoken to the child since March 30, 2019, and that Denise S. had changed the locks to their shared residence and subsequently left the home with the subject child. Robert R. further alleged that the child had not been in school since March 30, 2019. Based on these allegations and pursuant to Family Court Act §1034, the court ordered that ACS conduct an immediate investigation of the home with the assistance of the NYPD. The NYPD was directed to break down the door if necessary to conduct such investigation. Further, Denise S. was ordered to produce the child to the Attorney for the Child within twenty-four hours. On April 10, 2019, Denise S. appeared in court in response to the summons. She refused to disclose the subject child’s whereabouts, and was ordered to produce the child at the ACS field office located at 165-15 Archer Avenue, Jamaica NY 11433 within forty-eight hours. The court entered a temporary order of visitation granting Robert R. parenting time with the child each Saturday from 12:00 p.m. until 3:00 p.m. with pick up and drop off at the NYPD 73rd precinct. The matter was scheduled for a hearing on May 1, 2019. On May 1, 2019, Denise S. failed to appear in court and the court was informed that she had failed to produce the child for visits with Robert R. or to the Attorney for the Child. Further, ACS had been unable to locate or meet with the child. The court made the following findings on her default: 1. Denise S. submitted to the authority of the undersigned referee and waived any objections to the referee’s authority through her participation in the proceedings in front of the referee. 2. Pursuant to section 1034 of the FCA: a. In order to determine whether a proceeding should be initiated under FCA Article Ten, child protective services had to conduct an investigation and report its findings to the court; b. The child’s life or health may be in danger; c. Child protective services was seeking this order based on the fact that the investigator had been unable to locate the child; d. There was probable cause to believe that the child may be found at the home of the subject child’s maternal grandmother, Shirley S., located at 337 112th Street, Apartment 6C, N.Y. N.Y. based on information obtained in the course of the investigation. The court considered the nature and seriousness of the allegations in the underlying petitions, Denise S.’s statement on the prior court date, under oath, that she would not produce the child for child protective services or cooperate with child protective services, the age and vulnerability of the child and the potential harm to the child. The court further considered the child protective history of the family and took judicial notice of all orders and findings against Denise S. in the child protective matter of NN44748/16. As such, Denise S. was ordered to produce the child forthwith at the ACS Children’s Center and ACS was authorized to enter the home of Shirley S. in order to determine whether the child was present. The NYPD was directed to assist ACS in gaining entry to the home. The hearing was continued to May 6, 2019. On May 6, 2019, Denise S. once again failed to appear. The court was informed by counsel for ACS that ACS had made three attempts to gain entry to Shirley S.’s home but had been unsuccessful in doing so. Further, the NYPD declined to break down the door in order to gain entry to the home because it appeared as though no one was present in the home, even though neighbors confirmed that the child and Denise S. had been seen entering and leaving the residence. Denise S.’s petition for a modification of the prior order of joint legal and physical custody was dismissed without prejudice, the May 1, 2019 orders were continued and a warrant was issued against Denise S. to produce the child on the following court date. This warrant was issued pursuant to FCA §671(a)(ii) and (v) based on a determination that the respondent had failed to obey the summons and that the safety of the child was endangered. On Robert R.’s application (and following a determination that service had been deemed complete and issue joined when Denise S. was present in court on April 10, 2019), the court proceeded to inquest on Robert R.’s petitions. A negative inference was drawn from Denise S.’s failure to appear in these matters and/or provide evidence or testimony on her own behalf. In the family offense petition, pursuant to FCA §821 and credible and competent testimony by Robert R. in support of his petitions, the court found that there was credible and uncontroverted proof that Denise S. engaged in acts which would constitute harassment in the second degree in violation of Penal Law §240.26, in that she engaged in a course of conduct which alarmed and seriously annoyed Robert R. and which served no legitimate purpose, and that Denise S. did so with the intent to harass, annoy or alarm Petitioner. The court further found that pursuant to FCA §812, the family court has jurisdiction as the parties have a child in common. Accordingly, in regard to the family offense case and pursuant to FCA §842, the court entered a two-year final order of protection against Denise S. The conditions of such order included that she not assault, harass or menace Robert R., that she stay away from Robert R.’s person, residence and place of employment, and that there be no third-party contact or electronic contact.3 As to Robert R.’s petition to modify the underlying order of custody, the testimony provided on the family offense petition was incorporated and Robert R. provided additional credible and competent testimony in support of his petition. The court took judicial notice of the prior orders and findings against Denise S. in NN44748/16 and made a finding based on the credible and uncontroverted testimony by Robert R. that there had been a material change in circumstances that would require a modification of the underlying orders of custody on V06332/18 and V16543/17. Accordingly, the court issued a temporary order of legal and physical custody of the child to Robert R. and adjourned the matter to May 10, 2019 for warrant review and a final adjudication of the custody petitions. On May 10, 2019, Denise S. appeared in court, failed to produce the child, and testified, under oath, that she would not disclose the child’s whereabouts. Denise S. was found to be in violation of the warrant and the Department of Corrections was directed to hold her until 3:00 p.m. that day for recall of the case and production of the child. The case was recalled at 3:00 p.m. and Denise S. was advised of the possible outcomes of the matter and encouraged to speak to her attorney. She was asked on three separate occasions to disclose the whereabouts of the child and she declined to do so. At that point, a negative inference was drawn from the failure of Denise S. to respond to the court’s inquiry as to the child’s whereabouts. The court further found Denise S. to be in summary contempt based on her refusal to disclose the whereabouts of the child in response to the court’s questions and found that Denise S. was in violation of the underlying warrant. The warrant against Denise S. to produce the child in Family Court was continued pursuant to FCA Section §671 in that she failed to obey the summons and the court determined that the child was endangered. Further, Denise S. was found to be in violation of the warrant and was remanded to Department of Corrections until Monday, May 13, 2019 at 11:30 a.m. in order to have the child produced in court. On May 13, 2019, the parties and counsel appeared in court and the court was informed that the child had been brought to the precinct by Shirley S., the maternal grandmother, on May 10th at 9:00 p.m. Service was deemed complete on the order to show cause which had been filed by Robert R. on April 8, 2019. Denise S. was released as the child had been produced in court and a temporary order of protection was issued on V06332/18/19B and V16543/17/19B ordering that Denise S. not interfere with the care and custody of the child. Denise S. was further ordered to stay away from the child with the exception of visits supervised by Comprehensive Family Services. She was permitted electronic contact with the child between 3:00 – 6:00 p.m. daily and the matter was adjourned to May 29, 2019. The hearing did not commence on May 29, 2019 as one of the attorneys was ill and the case was adjourned to July 1, 2019. On that date, the court took judicial notice of the finding and orders on V06332/18 and O2985/19. Robert R. then testified as to the events that led him to seek a modification of the order of joint legal and physical custody and the order of protection against Denise S. He testified credibly that following the entry of the order of joint custody, he ensured that the child had health insurance and he took steps to ensure that the child was enrolled in school. He further testified credibly that beginning in July 2018, Denise S. used profanities against him in the presence of the child, and that she removed the child from the residence for periods of time during which he was unable to see or speak to the child. Robert R. testified that since the entry of the temporary order of custody, he has allowed Denise S. to have telephone and in-person contact with the child, that he wants the child to have a relationship with Denise S. but that he is concerned that if she is allowed unsupervised contact with the child, that she will abscond with the child again. Related to these concerns, Robert R. testified as to the remedial steps that had to be taken in order to address the amount of time in school the child had missed during the period of time she could not be located. Robert R. also testified that he had identified a medical provider and a therapist for the child, that he is employed and that he has food stamps and Medicaid for the child. He admitted that he has a criminal history but denied any violence or sexually inappropriate behavior towards the child or Denise S. Counsel for Denise S. cross examined Robert R. and he acknowledged his awareness that Denise S. has taken the child to the maternal grandmother’s home on the weekends but maintained that he had no contact information for Denise S. or the child when they were there. He denied any domestic violence or aggressive behavior against Denise S. The case was adjourned to August 12, 2019 and, on August 12, 2019, administratively adjourned to September 11, 2019, as the attorneys were unavailable. On September 11, 2019, the trial resumed and on the re-direct examination of Robert R., he denied that he was ever violent against Denise S. and testified that although he was supportive of contact between the child and Denise S., he continued to have concerns about unsupervised contact and/or any order of joint custody. He testified as to the steps that he took to ensure appropriate medical services for the child once she was in his care and the academic supports that he put in place, and he testified credibly as to his willingness to facilitate as much contact between the child and Denise S. as is safe and appropriate. On cross examination by counsel for Denise S., Robert R. acknowledged that Denise S. loves her daughter but identified concerns about her parenting capacity. He also stated that he has plans to relocate to Florida within the next two years. The court took judicial notice of the fact finding and dispositional order on NN44748/16 and Robert R. rested. Denise S. began her direct case and the court entered into evidence the permanency hearing order dated March 19, 2018 and the final order of custody dated May 23, 2018. Denise S. then testified that as of the entry of the permanency hearing order on March 19, 2018, the subject child had been in non-kinship foster care for almost two years and that it was her belief that she had completed her service plan. She testified further that as of that date, she was homeless and only agreed to an order of joint custody because she believed this to be the only way to get her child out of foster care. Of note, Denise S. testified that the foster care agency was told by the court not to assist her with housing — an entirely incredible and untrue claim. Denise S. provided testimony about the home she and Robert R. co-habited after the entry of the order of joint custody and about her employment at the time. She testified that she had primary financial responsibility for the family and identified a doctor for the child. Denise S. then provided photographic and testimonial evidence in support of her claim that in November 2018, Robert R. pushed open a locked door and entered a room in which she was located. The child was present during this incident. Denise S. further provided photographic and testimonial evidence in support of her claim about a similar incident later in November 2018. Both incidents involved a verbal altercation between the parties. Denise S. sought entry of a photograph taken in 2014 and testified that the photograph was a fair and accurate representation of an injury inflicted by Robert R. on her on June 14, 2014. The court entered the photograph into evidence but noted that the photograph was blurry and the image unclear. Counsel then inquired about the events that led Denise S. to leave the home at the end of March 2019. Denise S.’s testimony was vague and unresponsive to the questions being asked. The matter was adjourned to October 16, 2019. On October 16, 2019, Denise S. concluded her direct testimony. She testified that she is seeking an order of custody for the child but would allow Robert R. access to the child. On cross examination, Denise S. claimed that the findings on NN44748/16 were based on “false allegations.” She also testified that the child had not been in school from March until May 2019 because she was afraid to go. Denise S. also offered vague testimony about “ashtrays, liquor and weed” that Robert R. had in the home and testified that she refused to disclose the child’s whereabouts from March to May 2019 because there were “lies” about her. She denied any fault in this matter. Both parties sought to re-open their direct cases and each testified that if granted a final order of custody of the child, they would allow the other parent access and parenting time. Robert R. testified that he would facilitate supervised contact between Denise S. and the child due to concerns about Denise S.’s mental stability and her actions in depriving him of contact with the child from March to May 2019. Denise S. testified that she would only allow Robert R. access to the child if the court sends him for toxicology screens twice per week. The court continued the temporary orders and reserved decision. This case is a complex one in which there has not always been an obvious path to a best interest determination. Robert R. has been far from an ideal parent. For years, he did not fully assert his parental rights — evidenced by repeatedly having his petitions dismissed for his failure to pursue them. By his own admission, he struggled with mental health issues and substance abuse which limited his parenting capacity. Even after the child protective case was filed against Denise S., he did not immediately seek custody of his child and, as a result, she spent substantial time in non-kinship foster care. That said, since July 2017, Robert R. has evidenced a sincere and committed desire to provide safe and appropriate care for their daughter. He appeared in court repeatedly in order to effectuate this goal and complied with court orders and directives. In the present hearing, he testified credibly and sincerely about his concern for his child, the steps that he took to ensure her safety and well-being and his attempts to ensure a relationship between Denise S. and the child notwithstanding the challenges of that contact. On the other hand, time and time again, Denise S. has evidenced a complete unwillingness to abide by court orders or take reasonable steps to ensure that Robert R. have continued contact with the child. She absconded with the child, resulting in her own incarceration and court orders that the NYPD gain access to the child by breaking down the door to the maternal grandmother’s apartment. More significant that any contempt of court or disregard of court orders is the chilling lack of regard that Denise S. demonstrated for the emotional and physical harm this behavior could cause for their daughter. Even when testifying on her own behalf, Denise S. remained defiant and wedded to her own narrative. She denied any wrongdoing in absconding with the child and depriving the child of access to her father. She failed to demonstrate even a glimmer of recognition of the emotional and physical harm that could have befallen the child once the assistance of the Administration for Children’s Services and the NYPD became necessary. Moreover, the court found Denise S.’s testimony to be incredible and self-serving. Even when questioned by her own counsel, she refused to provide adequately responsive answers to direct questions and she continued to offer testimony that was unrelated to the questions being asked. It is undisputed that the child is bonded to both of her parents and wants maximum access to each. It would be in the child’s best interests if both parents evidenced the capacity to enable the child to have parenting time that is safe, appropriate and absent of emotional and psychological stress. While Robert R. has taken steps to ensure that he is such a parent, Denise S. has not. To date, she has not taken any steps which suggest a recognition of her earlier errors nor has she indicated any sincere belief that the child should have a relationship with Robert R. The court is in the unique position to evaluate the credibility of the witnesses, and given the earlier referenced credibility findings, the documentary evidence and prior court orders and findings, the court hereby determines that it is in the child’s best interest for a full order of sole legal and sole physical custody to be awarded to Robert R. Robert R. shall supervise all parenting contact between Denise S. and the child and shall make efforts to notify Denise S. in a timely manner about all educational and medical decisions relating to the child. Robert R. shall not interfere with Denise S.’s access to the child’s educational or medical information or providers. A final order of sole legal and sole physical custody to father, Robert R., is so ordered. Dated: January 8, 2020 Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]:
