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Law & Mediation Office of Lewis S. Calderon

Successfully resolving family disputes for over 20 years

Successfully resolving family disputes for over 20 years

Successfully resolving family disputes for over 20 years

Can a child in foster care be returned to a parent who denies responsibility for the injuries suffered by the child or the child’s sibling?

| Feb 25, 2021 | Firm News |

In New York, when a neglect or abuse petition is filed, Family Court will remand the child to foster care if the Court determines that a release of that child to the parent will create an imminent risk of harm to the child and that there are no orders that could be put in place to eliminate that risk. The parent will then be referred to rehabilitative services to address the underlying issues that resulted in the neglect allegations, e.g., parenting skills, anger management, domestic violence services, substance abuse treatment and/or mental health treatment. As an attorney who has represented parents and children in these types of proceedings for over 20 years, the question that comes up most often is at what point should the child be returned to the parent. Is it enough to simply check off the boxes of the service plan developed for that parent? As many of my clients have learned, simply attending services is not enough if the parent cannot demonstrate that they have gained from the services and addressed the parental flaw that resulted in the neglect allegations so as to sufficient eliminate the risk of harm to the child. I have participated in many termination proceedings where a parent attended all their services only to lose their parental rights when the Court ultimately determined that they did not benefit from rehabilitative services.

Now what happens when a parent does more than just attend the services but rather actually addresses their underlying parental flaws; yet at the same time, the parent denies culpability for any injuries suffered by their child? Such a scenario is not so uncommon as many findings of neglect and abuse are made based upon a theory of res ipsa loquitor, where the child suffers an injury such that it would not have happened absent an act of neglect or abuse and the parent does not have an adequate explanation for the injury. In many such case, both parents and often extended family or caretakers are found liable yet not all those found liable were indeed culpable. In other cases, parents will deny culpability but for various pragmatic reasons, the parent will not contest the neglect petition. Should the Court release the child to such a parent who denies culpability? Isn’t denial of culpability evidence that the parent did not benefit from their services and the child would still be at risk?

This is the very issue facing me on my recent appeal pending now in the Second Department. My client in Matter of Zaniyah R.T. is the mother of five children currently in foster care. She has had multiple findings of both abuse and neglect and the most recent neglect filing alleged that her newborn was derivatively neglected based upon the mother’s failure to address the parenting flaws that led to the older siblings be placed in and remaining in foster care. Family Court held a Family Court Act §1028 hearing and denied the mother’s application for the return of the newborn based upon the fact that the mother denied culpability for the injuries suffered by the siblings of the newborn. However, the evidence at the hearing showed that the mother not only cooperated with her services, but she benefited from them to the extent that the agency’s caseworker advocated for the release of the infant to the mother and the Court’s Mental Clinic, who conducted an imminent risk assessment, recommended that the infant be released to the mother, noting marked improvement by the mother in addressing her parental flaws.

Should the mother’s denial of culpability preclude the return of the child? Based upon a recent case decided by the First Department, Matter of Ashlynn R., 189 A.D.3d 647 (1st Dept. 2020), I argued that it should not. In Ashlynn R., the parents appealed from both findings of abuse after trial and Family Court’s denial of their motion for a trial discharge of the children. The First Department affirmed the findings of abuse based upon expert testimony that the rib fractured suffered by one child and the other child’s diagnosed behavioral delays and “failure to thrive” were “of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child.” Yet, despite the parents continuing to maintain that the injuries were of accidental cause, the First Department reversed the denial of the motion for a trial discharge. Noting the parents’ compliance with services and improved parenting skills and weighing that with the emotional harm suffered by the children being separated from their parents, the Court determined that the parents’ acceptance of ultimate responsibility for the children’s injuries was demonstrated by their conduct.

I argued similarly that in essence my client’s actions spoke louder than her words. While she denied culpability for the injuries suffered by the children, she did acknowledge her parenting flaws and worked extremely hard to address those flaws. Her success in addressing those flaws was borne out in her interaction with her children as observed by the supervising caseworker and the mental health clinic. My client also took responsibility as she did not contest the prior neglect matters. Thus, in the end, my argument is that denial of culpability for injuries suffered by the children should not preclude the return of the children where the parent can demonstrate the underlying parents flaws that led to those injuries were successfully addressed in rehabilitative services.