New York Family Law Blog
In this abuse and neglect case, the Administration for Children’s Services (ACS) filed child neglect petitions, pursuant to Family Court Act Article 10, against Respondent Mother in Bronx County Family Court. A New York Family Lawyer said the petitions alleged that a hospital social worker stated that the child, two years of age, had been in the hospital since January 2009, due to his failure-to-thrive and developmental delays, and that he had special needs, a G-tube, which was required for feeding, and a colostomy bag, and that he required exceptional care and special medical equipment. The social worker stated that Respondent Mother had taken the child on a visit and then refused to return him to the hospital. She did not have necessary medical supplies, nor had she completed the medical training to care for the child.
A Bronx Family Attorney said that when Respondent Mother returned the child to the hospital on July 2010, the child was “observed by hospital staff to be dehydrated with sunken eyes and dry lips. The subject child had also lost approximately 20 percent of his body weight.” The Petition also alleged that in January 2010 she attempted to remove the child from the hospital without permission and the police had to be called. In the seven months prior to June 2010, Respondent Mother had visited with the child only three times and had not called the hospital to inquire about him. The Petition further stated that the four children who resided with Respondent Mother did not have up-to-date immunizations. A New York Custody Lawyer said the Petition alleged that all of the children were neglected children or in imminent danger of becoming neglected.
Thereafter, an ACS Attorney and an ACS Caseworker appeared before the Court. The Caseworker stated that he had told Respondent Mother of that day’s court date and she told him she would be present. However, she did not appear. He informed the Court that he was not certain as to the whereabouts of the Respondent Mother and the subject children. ACS requested the Court to remand the children to the custody of the ACS Commissioner. The Court directed the ACS Caseworker to step outside to telephone Respondent Mother to inquire as to where she and the children were, and arrange to meet with her. The case was recalled, and the ACS Caseworker returned to court and said that he had spoken to Respondent Mother. She had refused to divulge her location and that of the children. He said he had scheduled a meeting with her at the ACS Brooklyn Field Office. Based on Respondent Mother’s refusal to disclose her whereabouts and that of the children, the Court issued a Warrant of Arrest for Respondent Mother, and ordered production of the children, but stayed execution of the Warrant, directing Respondent Mother to appear voluntarily in Court on July 2010, with the children. The Court granted ACS’s request to remand the child, who remained hospitalized, but denied ACS’s request to remand the four children who resided with Respondent Mother. The Court instructed the ACS Caseworker to inform Respondent Mother of its mandate that she appear in court, provide her with the stayed warrant, again request information as to where she and the subject children were residing, and inquire as to the children’s health care.
Thereafter, a Queens Family Lawyer said the respondent Mother did not appear before the Court. The ACS Caseworker informed the Court that Respondent Mother had not appeared for the meeting he arranged with her at the Brooklyn Field Office. He stated that after he waited for her, he then went to the apartment in Brooklyn, in which the Maternal Grandmother and Maternal Great Grandmother resided. He was informed that Respondent Mother and the children were not there, and he was not provided with any further information. The ACS Caseworker said that he left a copy of the stayed Warrant on the door of that apartment. He said he had learned from staff at the shelter in which Respondent Mother and the children had been residing that they had not returned to the shelter. The Caseworker again told the Court that he did not know the whereabouts of Respondent Mother and the children. The Court then issued a Warrant of Arrest, directing “the arrest of Respondent Mother, and in conjunction with the arrest, that Respondent Mother and subject children be brought before the Court.” The Court then remanded all the children to the custody of ACS, finding it contrary to the health and safety of the children to remain with Respondent Mother based on allegations in the Petition and that the location of the subject children was unknown.
Respondent Mother appeared before the Court. A Queens Custody Lawyer said the Court ordered her to provide information as to the whereabouts of the children, and the names, addresses, and telephone numbers of all relatives and friends with whom the children might be residing and/or who might know where the children were located, and/or arrange for the children to be produced in court or at an ACS office. Respondent Mother claimed that she had no information as to the children’s location. Respondent Mother claimed she could not contact anyone to obtain information as to the children because she was incarcerated and did not have access to a telephone. The Court directed Respondent Mother to consider all persons who could have information as to the children, and stated the Court would recall the case and have ACS provide her with a cell phone. The case was recalled, and the ACS Caseworker provided Respondent with a cell phone in the courtroom. The Respondent Mother claimed that she did not know any other telephone numbers because they were stored in her cell phone, which she left in the Great-Grandmother’s home in Brooklyn. The Court then directed Respondent and her attorney to arrange for someone in that apartment to bring the cell phone to court the next day. The Court continued the remand of Respondent Mother, stating that Respondent Mother would be released as soon as the children were produced. The Respondent Mother’s cell phone was never brought to court.
The Court again ordered Respondent Mother to provide information to assist ACS in locating the children and again informed her that she would be released when the children were produced. Respondent Mother provided the Court with the names of her two sisters. She claimed that she did not know their addresses, birth dates, or any contact information. She also provided the name of a brother who, she said, lived in North Carolina. She could not recall his address, telephone number or birth date as well. The Court again stated that Respondent held the “keys” to her incarceration in that the Court would release her when the children were found.
The issue to be resolved in this case is whether respondent mother should be placed in contempt for disobedience of court orders.
Family Court Act 156 governs the contempt powers of the family court and provides, pursuant to the Judiciary Law, Article 19, that the family court has the power to punish for both criminal and civil contempt, either separately or combined. The statute ” makes explicit that the court’s power extends to any person properly before the court, rather than merely a formal party to the proceeding’ ” Here, Petitioner ACS asks that the mother, charged as Respondent Mother in the child neglect proceeding, and properly before this Court, be held in civil contempt for violation of the lawful mandates of the Court pursuant to Judiciary Law § 753 (A) (3).
For reasons set forth below, the Court finds by clear and convincing evidence that Petitioner has sustained its burden of proof and Respondent Mother is guilty of civil contempt. The Court of Appeals in a case, delineated the four elements of civil contempt: 1) a lawful order of the court existed that expressed a clear, unequivocal mandate; 2) the charged party had actual knowledge of the existence and contents of the court’s order, although it is not necessary that the order be served upon the party; 3) the order was disobeyed; and, 4) such disobedience was calculated to or actually did defeat, impair, impede, and prejudice the rights or remedies of another party to the litigation. Proof of willful disobedience is not an element of civil contempt since the purpose of a civil contempt is to protect the rights of another party to the litigation, and compensate the injured party “for the loss of or interference with the benefits of the mandate”
In the instant case, the Court finds that Petitioner ACS has established that the following lawful mandates were in effect: 1) the Oral Orders of the judge issued to Respondent Mother and the Oral Orders issued by this Court; 2) the Warrant of Arrest, execution stayed, issued by this Court, and 3) the Warrant of Arrest issued by this Court.
Accordingly, the Court finds by clear and convincing evidence that each of the Oral Orders issued by the Courts and the Warrants of Arrest were lawful mandates, and were clear, specific, and unequivocal, therefore meeting statutory and case law requirement.
As to the second element of civil contempt, whether Respondent Mother had actual knowledge of the court’s lawful mandates, the judge and this Court issued the above Oral Orders directly to Respondent Mother. With regard to the stayed Warrant, the Court does not find that ACS has proven through clear and convincing evidence that Respondent Mother had actual knowledge of the stayed Warrant.
Accordingly, the Court finds by clear and convincing evidence that Respondent Mother had actual knowledge of the following mandates of the court: the Warrant issued and Oral Orders of the Courts issued to Respondent Mother, that directed her: a) to produce the subject children in court or at an ACS office and/or to arrange for the production of the children; and, b) to provide the Court and/or ACS with the location of the children, and/or the names and contact information for any and all persons who could provide information as to their location.
The Court finds it incredible that Respondent Mother does not know the addresses, contact information or birth dates of any relatives or friends who can assist the Court in locating the children. The only telephone number and address that Respondent Mother claims that she knows is that of Maternal Grandmother/Maternal Great Grandmother. Respondent Mother was evasive and often non-responsive in her testimony. Further, her sudden recall in her testimony of August 10, 2010 of the address in North Carolina at which the Maternal Grandmother had lived up until recently, further substantiates the Court’s finding that Respondent Mother has not been forthcoming in her responses to the Court’s directives and therefore is not in compliance.
In sum, Respondent Mother’s responses to questions that the Court directed her to answer were evasive, non-responsive, and incomplete, demonstrating clear disobedience to the Court’s Orders. “It is sufficient if, as here, the charged party is shown to have been actually aware of, and disobeyed a clear and unequivocal court directive”. Accordingly, the Court finds by clear and convincing evidence that Respondent Mother has disobeyed the lawful mandates of the Court.
Pursuant to the Court’s Final Order with Warrant of Commitment, the Respondent Mother, is hereby incarcerated in the county jail of the City of New York in which she shall be found, and there to remain charged with civil contempt until the subject children are produced in Court or at an ACS office, or for a term of imprisonment of six months in the county jail of the City of New York, for an opportunity to purge herself of her contempt by compliance with the aforementioned court orders, by clear and convincing evidence, by revealing the whereabouts of the subject children and/or arranging for their production. Bail is set and the bail bond is set at 10 percent of the bail.
Neglecting ones child should not be tolerated. Here in Stephen Bilkis and Associates, we assist guide, and defend these helpless children. Contact our Bronx County Child Custody Attorneys now for a competent advice.