FIORDALIZA A. RODRIGUEZ, J.
The Petitioner Agency New York City Children's Services (hereafter "ACS") filed an Application for Order for Access to Children and/or Home (Before Petition Filed) pursuant to Section 1034 of the Family Court Act on 12/30/16. ACS Attorney Gaynor and Child Protective Specialist Shaturka Wilson (hereafter "CPS Wilson") appeared before the Intake Judge. It is unclear what was submitted into evidence or argued as the transcripts were not available. However, after this ex-parte first appearance, the Honorable Peter Passidomo preliminarily found reasonable cause that a child or children's life or health may be in danger and that access sufficient to determine the child/children's safety had been denied. Judge Passidomo ordered that the parent or other person legally responsible shall, between the hours of 9am and 5pm, bring the subject children I.C., J.C., L.C., and T.C., for observation and interviews outside the presence of the parent or other person legally responsible to the Montefiore Child Advocacy Center (hereafter "CAC"), located at 3314 Steuben Avenue, Bronx, NY. The case was adjourned for return of process on 1/5/17 and transferred to the undersigned judge.
Order to Show Cause motions were filed with this Court on 1/9/17 and 1/13/17 by both Mark DellAquilla, Esq., as attorney for the child I.C. (hereafter "AFC DellAquilla") and by Hannah Weinstein, Esq., as attorney for the Respondent Mother Christina R., (hereafter "Mother") requesting why an order should not be entered granting: 1) intervention as of right or granting permission to intervene, 2) vacating an ex parte order entered December 30, 2016 pursuant to §1034 which mandated the Respondent Mother and/or the Respondent Father Luis C. (hereafter "Father") to bring the children to the Child Advocacy Center in the presence of various arms of law enforcement for observation and interviews outside the presence of the parent or other person legally responsible in violation of the child's federal and state constitutional rights and in violation of Article Three of the Family Court Act; 3) dismissal and 4) granting all other relief as the Court deems appropriate.
The Court assigned Thomas Caruso, Esq., to represent the children J.C., L.C., and T.C., (hereafter "AFC Caruso") and assigned Michael Greifinger, Esq., to represent the Father. Initially and pending a full hearing, interim relief was granted as to vacating that part of the directing production of the child I.C. to the CAC. After AFC Caruso interviewed the children and noted his position, interim relief was granted as to vacating the order of production of the children J.C., T.C., and L.C., to the CAC pending a full hearing.
The matter was conferenced for possible resolution and ACS was ordered to provide discovery to all counsel and to assess the parameters of the interviews in terms of the presence of the parents with counsel via a two way mirror. It was reported that the CAC protocol only allowed for law enforcement staff and the caseworker in the two way mirror room not counsel/parents. AFC DellAquilla reported no delinquency case had been filed and thus he would advise his client I.C. not to answer any questions. A neglect case was not filed during the pendency of the motions. The Attorney for the Mother reported on each appearance that ACS had been to the home several times, observed the children and did not report any safety issues. ACS did not dispute this assertion.
A resolution was not reached and a hearing was scheduled. The Court examined the motion papers and supporting affidavit(s) and heard testimony in relation to the motions. ACS presented the testimony of CPS Wilson on 2/14/17, 2/16/17, and 3/6/17. ACS did not present any other evidence and rested. At the close of ACS' case, attorneys for the Mother, the Father, the AFC DellAquilla and AFC Caruso made a prima facie motion to dismiss. After hearing arguments, the Court reserved decision.
At issue is whether ACS has presented sufficient evidence to make out a prima facie case of probable cause pursuant to Family Court Act §1034 requiring the Mother and the Father to bring the subject children for an observation and interviews outside the presence of their parents to the CAC where: 1) a state central registry report was made almost 8 months prior to the filing of an Application to the Court; 2) ACS closed out their investigation, though kept the case open, despite observing a video of the alleged abuse but finding none and 3) ACS has observed the children on numerous occasions and did not report risk of harm or safety concerns.
Intervention as of right or by permission are addressed in Section 1012 and Section 1013 of the Civil Practice Law and Rules, respectively. "Any person shall be permitted to intervene in any action... when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment..." (See NY CLS CPLR §1012). Any person may also be permitted to intervene in "any action when a statute confers a right to intervene in the discretion of the court." (See NY CLS CPLR §1013) When exercising this discretion, the court is to consider any delays caused by this permission or the prejudice to the "substantial rights of any party." (Id., see also Teleprompter Manhattan CATV Corp v State Board of Equalization & Assessment, 34 A.D.2d 1033 [NY App Div 3d Dep't 1970] [holding intervention should be liberally allowed, particularly where there are common questions of law and fact and when an interest... may be adversely affected by the judgment]).
It is well settled that parents have "a constitutionally protected liberty interest in the care, custody and management of their children." (see Southerland v City of NY, 680 F.3d 127, 142 (2d Cir. 2011) (quoting Tenenbaum v Williams, 193 F.3d 581, 593 (2d Cir. 1999)). This interest, however, is "counterbalanced by the compelling governmental interest in the protection of minor children particularly in circumstances where the protection is considered necessary as against the parents themselves." (Id. at 152 (citation and internal quotation marks omitted)). In an effort to balance a parent's constitutional rights and a governmental interest in protecting children, the Legislature, in 1969, enacted the Child Protective Procedures Act (Family Ct Act art 10).
The primary purpose of an Article 10 proceeding is to "establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. It is designed to provide a due process of law for determining when the state, through its Family Court, may intervene against the wishes of a parent on behalf of a child so that his [her] needs are properly met." (NY CLS Family Ct Act §1011; People v Kenyon, 46 A.D.2d 409; Matter of Maureen G., 103 Misc.2d 109). A related, perhaps secondary, purpose would be—where possible— "to preserve and stabilize family life" (Social Services Law, §423, subd 1; §411 [child protective services]; § 397, subd 2, par [a]; § 398, subd 2, par [a]). See also In re Theresa C., 121 Misc.2d 15 (NY Fam Ct 1983).
Section 1034 of Article 10 was added in 1970 to provide preliminary procedures when court intervention is necessary. According to the statute, a family court judge may order a child protective investigation and report its findings in a report "in any proceeding under this article" and "in order to determine whether a proceeding under this article should be initiated." (See NY CLS Family Ct Act §1034(1)). The statute has been amended throughout the years and allows ACS to seek a court order before filing a neglect/abuse petition, upon showing of "reasonable cause to suspect that a child or children's life or health may be in danger" based on: 1) a report of suspected abuse called into the State Central Registry; and 2) if the caseworker is unable to locate a child or denied access to the child sufficient to determine their safety and 3) after the caseworker speaks to the parent and advices that he/she may consider obtaining an immediate court order without further notice to gain access to the child or children. (See NY CLS Family Ct Act §1034(2)(a)(i)).
Where the court order has been secured, the order may include the production of the child or children to a Child Advocacy Center or to a particular person for an interview. (See NY CLS Family Ct Act §1034(2)(a)(ii)). The Child Advocacy Center (CAC) provides services to "children who have suffered sexual abuse or severe physical abuse." It uses a team centered approach that addresses the child's "safety, tending to their physical injuries and emotional needs and bringing abusers to justice." The team consists of medical, legal, and social resources for abused children in a permanent, child-friendly location. Specifically, the CAC is partnered with ACS, the NYPD and the District Attorney's Office, as well as medical providers. (See safehorizon.org/child-advocacy-center/) (last visited March 20, 2017). (See also Matter of Abraham P., 21 Misc.3d 1144(A), 875 N.Y.S.2d 818 (NY Fam Ct 2008).
The relevant factors a court is to consider when a §1034 application is made include but are "not limited to:
(See NY CLS Family Ct Act §1034(2)(d)).
Emphasis is also noted in the statute in expediency as a report by the child protective investigator is due to the court within 3 days (See NY CLS Family Ct Act §1034(2)(g)). Furthermore, the court shall assess the actions necessary "in light of the child or children's safety, provided, however, that such actions shall be the least intrusive to the family. (See NY CLS Family Ct Act §1034(2)(e)).
It is clear that the child I.C.'s and his parent's interests are affected by orders resulting from this Application. Thus, intervening status is granted and is warranted. This Court notes there are less than a handful of reported cases that construe the applicability of Section 1034. In the case of In re Marcario, 119 Misc.2d 204 (NY Family Ct 1983), the court denied an application for an entry order to determine the presence of an alleged abused or neglected child where the supporting affidavit rested on unnamed informant whose source was hearsay, where people under investigation had different names than victims of alleged abuse and there was a 90 delay in making the application for authorization to search the premises. The court found if there was a real concern for the child's welfare, the application would have been made immediately upon learning of purported abuse. In the case of In the Matter of Smith Children, 26 Misc.3d 826, (NY Family Court 2009), the court denied the agency's application as it did not meet the probable cause standard because it was based on an anonymous report, the children were appropriately dressed, free of any visible marks or bruises and appeared well.
The case that is more akin to the circumstances herein is In re Zena O, 212 A.D.2d 712 (NY App Div 1st Dep't 1995). In Zena O, there was an abuse petition filed against a grandparent. The court found there was abuse, and while being well intentioned, also ordered ACS to investigate another family that lived in the 2-family home. The Appellate Division reversed the lower court because it lacked authority to order that child's 5 cousins who lived in the same 2-family home, to be subjected to interviews by psychologist and validator to determine if they had been sexually abused where the mother did not consent, no formal proceedings were instituted and investigation by the Commissioner of Social Services had already resulted in a finding that children were not at risk.
In this case, CPS Wilson testified that a report was called into the State Central Register on 5/2/16 by Detective Jody Nunez. The Oral Report Transmittal (ORT) was never offered into evidence and the protracted testimony established the Detective got the information from shelter staff who allegedly observed via video, (as per the petition, not testimony, the alleged incident occurred on 4/26/16, and the ORT was filed days later), the child I.C. was observed via video putting his penis in the child L.C.'s mouth. Obviously, these are very serious allegations for this Court to consider. The Court is also aware that ACS has been under recent media scrutiny. The child I.C. was 9 ½ at the time of filing and L.C. was 2 ½. A shelter staff, whose name is unknown to this court as it was not included in the application nor testified about, was the person who informed the detective of what he/she allegedly saw via video. CPS Wilson did not say that she spoke to the shelter staff nor provide additional details such as where the person in relation to the children was, what exactly did the staff say she/he observed, how long the Mother and the children lived in the shelter, whether the staff had any complaints of the Mother violating any of the shelter's rules or any complaints about the children's care or behavior.
According to CPS Wilson, she went to the Mother's home several times including 5/2/16, 5/3/16, and 6/29/16. The Mother, who had left the shelter and lived with her parents in May 2016, denied the allegations and allowed CPS Wilson to observe the children. The children appeared well-taken care of and had no marks or bruises. She observed the children lived in a safe and suitable home with their Mother/grandparents. The Mother told CPS Wilson that she would cooperate with the investigation, but did not want to be interviewed by ACS as she had secured an attorney. The Mother explained that she was at the shelter, a detective and shelter worker came to her room accusing her son of doing something to her other son. When she requested proof, they did not want to show her proof. The Mother thereafter left the shelter and moved in with her parents. She sent the child I.C. to live with his Father for some time during the investigation as per the detective's request. There is no criminal case that has been filed as a result of the allegations in the Application and no actual neglect is alleged against the Mother or the Father. No court intervention or warrant for the children or the parents was sought in July, August, September, October or November. ACS came to court on 12/30/16.
On January 2017, approximately eight months after ACS began its investigation, the Mother and the Father moved in together. CPS Wilson was still allowed to assess the home/children until February 2017 to make a safety assessment and where she was able to observe the children. She did not see the children behave inappropriately during any of her visits. The caseworker did not report any safety concerns or risk of harm. The Mother nor the Father have any child protective history or prior cases called in against them.
The Mother allowed ACS to observe, not interview, her son I.C. and advised CPS Wilson that he had an attorney. Significantly, ACS failed to note in the Application that the Mother was represented by Counsel and the child I.C. was represented by Legal Aid from May 2016 to the filing of the Application on 12/30/16. In fact, CPS Wilson admitted during her testimony that she had spoken to the Mother's counsel on the telephone. At no time during the investigation of this family did CPS Wilson or anyone from the agency, who had ample opportunity to observe the children both at home and in school, provided a scintilla of evidence reporting concern for the safety of the children or their care by the Mother/Father. The Mother in this case, like in Zena O, did not consent to the child being interviewed at the CAC. A neglect petition has not been filed against the parents. Of significance is also that CPS Wilson testified that in June 2016, she told the Mother the investigation would be closed out and told the Mother if she needed referrals to reach out to her.
With regard to the alleged video, CPS Wilson testified that she observed the video shared by the Detective. CPS Wilson observed the children in a room, I.C. crawled across a bench to L.C. who was in the stroller. CPS Wilson was unable to see the child in the stroller. She saw I.C. bent down in front and then L.C. was kicking his legs. The child I.C. jumped back. There was no testimony about I.C. having his pants down, seen naked, or showing any private parts. Of note, is that according to the caseworker, the detective told her she saw I.C. go to the stroller stand in front of stroller and do something with his pants. This is a totally different account of what CPS Wilson provided and the Detective did not testify. In fact, CPS Wilson testified that she wrote in her notes "no sexual abuse after observing the video." Detrimental to the Petitioner's case is the fact that the video was never introduced into evidence so this Court can make her own assessment.
The Court is bound by the evidence presented and every reasonable inference that can be afforded. However, upon close examination and in light of the circumstances of the CAC interview being requested, CPS Wilson's description of what she observed in the video was very unconvincing and not enough to disturb the fair and reasonable balance between a parent's right to care for the children and the children's right to be free from harm. The Court is cognizant that establishment of a prima facie case does not require it to find that the parents were culpable and that it merely establishes a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record. ACS still maintains the burden of proof. On this record, the almost eight month delays in securing Court intervention, the lack of evidence presented, and based on the concerns raised by both AFC Caruso and AFC DellAquilla due to a possible violation of his young client's due process rights, the Court does not find ACS has established a prima facie case. Overall, it is not in the children's best interest, given their vulnerability and young age, to be subjected to such an intrusive interview by a CAC where the law enforcement personnel would be present via a two way mirror and where charges can be filed against I.C.
In this case, the Mother and the Father have acted responsibly concerning the children and have taken steps to address the agency's requests. The Mother nor the Father should be forced to cooperate on an untimely application as ACS waited approximately eight months after the report was filed, more than 60 days after the investigation was to have been completed and well over the 90 days contemplated in Matter of Macario (supra [application denied]). Moreover, the "ORT" nor the Application allege neglect or any acts or omissions against the Mother or the Father. It has long been established, since at least 1968, that parents "are under no obligation to cooperate with a child protective agency's investigation of them. (See In re Smith, supra at 832-833, quoting In Matter of Vulon, 56 Misc.2d 19 [Family Ct Bronx Cty, 1968]). On the facts presented on this case, the omissions made during the first appearance and in the supporting Affidavit, it appears the current Application is being used as a means to force the parents and I.C. to comply further with ACS. There is nothing on the record that would justify disturbing this family's ability to create a stronger unit and move forward. Cases like these have to be reviewed with the deepest of care and this untimely Application should not be allowed as a routine practice (See In re Smith, supra). Lastly, the legislature should contemplate changes in Section 1034 to address procedures that can provide protection to children facing I.C.'s circumstances on due process grounds.
ORDERED that the Application for Access to Children and/or Home is DENIED.
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.