Judge finds NYC Administration for Children Services in contempt for not placing child with uncle

  Copyrght 2009 Wikimedia Commons

Judge Bryanne Hamill, of Kings' County Family Court,  found the New York City Administration for Children's Services in contempt earlier this week for not placing a child in the custody of her uncle as ordered by the court. Judge Hamill also fined ACS $2,500 plus costs and expenses in the Matter of Lanaya B., for failure to release the child into the custody of her uncle on May 19 as ordered.

Lanaya B. and her two siblings were removed from the mother's care when Lanaya was hospitalized for failure to thrive. The mother, suffering from depression, was unable to properly feed her.

According to the judge's decision:

"On May 14, 2009, ACS requested a removal of the three subject children from their mother and a remand to ACS, which was granted by the presiding intake Judge. On May 14, 2009 the Court issued an order directing ACS, pursuant to Family Court Act (hereinafter "FCA") §1017 (1), to investigate the children's maternal uncle as a resource for the children. The respondent requested a FCA §1028 hearing, which was adjourned to this Court on May 19, 2009."

"On May 19, 2009, the parties agreed to a partial settlement. The two older children were placed into the care and custody of their mother, who consented to the continued remand of the infant, Lanaya, with the understanding that the infant would be placed with the maternal uncle. ACS informed the Court that it had conducted a State Central Registry clearance for the uncle, but failed to submit a written investigative report on him, pursuant to FCA §1017, as ordered on May 14, 2009."

Because of the failure of ACS to submit a written report, the Court investigated the uncle on May 19 and found that he was a suitable person for placing Lanaya. The court also ordered that Lanaya's mother could have liberal visits with her, supervised by the uncle, so that she and the infant could bond. The infant's law guardian was in agreement with the plan.

Later testimony revealed that during these visits the mother spent upwards of eight hours a day with the child, fed, burped and washed her and brought the siblings along so they could bond with her also. In contrast, while in foster care the mother was only allowed to visit with her baby for a maximum of two hours a day, during the few days she was allowed to visit.

While ACS presented many arguments to explain why the agency did not turn the child over to the uncle as ordered, the judge would have none of them. In short ACS argued that they were unable to fulfill the court order. Judge Hamill said that the inability to fulfill the order was self-created. In her decision, Judge Hamill also stated that the law (FCA §1017) does not give ACS the authority to "stay" a court ordered placement.

In awarding the mother compensation for the actions by ACS, the judge stated:

"The record here is clear: the respondent mother suffered loss of visiting and bonding time of eight or more hours per day with her daughter for each day that ACS failed to comply with this Court's mandate. For nine days of her infant's life, this mother was not able to hold, feed, parent and bond with Lanaya, because she was placed in a stranger's home instead of the home of a loving relative that this Court held to be in the best interests of Lanya. The FCA §1028 hearing testimony supports that when Lanaya was placed with her uncle, nine days after it was first Court-ordered, her mother was able to spend up to eight hours per day with her, and Lanaya, in turn, was able to be parented by her mother. Thus, this Court finds that this mother suffered daily compensable harm for which she shall be compensated for each day ACS was in contempt of its order."

Judge Hamill's decision also referenced the law in regard to the importance of placing children with suitable relatives rather than with strangers. She also made it clear that the definition of liberal visitation is liberal visitation, quoting from respondent's counsel who argued in her reply, "Liberal as applied to visits is widely understood to describe visits that are unrestricted in their frequency."

For more info: Read more articles by Dan Weaver on family court, child custody, child abuse and related matters.