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In re Maria M.
Citations: 244 A.D.2d 255; 664 N.Y.S.2d 440; 1997 N.Y. App. Div. LEXIS 11698
Court: Appellate Division of the Supreme Court of the State of New York; November 19, 1997; New York; State Appellate Court
The Family Court of Bronx County, presided over by Judge Myrna Martinez-Perez, issued an order on June 5, 1997, reversing the previous decision to grant custody of Marisela M. to her non-respondent father, Hector M., pending a fact-finding hearing. Instead, Marisela was remanded to the temporary custody of the Commissioner of Social Services. A Temporary Order of Protection was also vacated as moot, which had prohibited the respondent mother, Apolonia M., from being alone with Marisela and required Hector to supervise her at all times. The Commissioner had filed a petition in May 1997, alleging abuse and neglect by Apolonia towards her daughters, Maria, age 17, and Marisela, age 5. Apolonia lived in the Bronx with her daughters and Hector. While Hector did not contest the removal of Maria, he sought Marisela's return. Prior to the hearing, the Commissioner offered to return Marisela to Hector under the condition that he and Marisela live separately from Apolonia, which Hector declined. During the section 1028 hearing on May 22, 1997, it was revealed that Maria reported physical abuse by Apolonia, including being scratched and hit. Apolonia’s unstable behavior was highlighted when she locked herself in a bathroom with Marisela and threatened suicide when police intervened. Apolonia had 18 other children in Puerto Rico, some placed with relatives or in foster care, and was vague about their circumstances. Hector expressed fear of Apolonia's violent temper but later denied this in court, stating he was not employed and that Apolonia was in charge of the children. The Family Court recognized the serious abuse of Maria but found no evidence of abuse towards Marisela. The court noted Hector's lack of a criminal history and prior child protective involvement and implied that child welfare authorities had not made reasonable efforts to prevent Marisela’s removal before police intervention. The court determined that removal of Marisela from her mother's custody was not required to mitigate an imminent risk to her life or health, as stipulated by section 1028. Instead, it opted for an order of protection, preventing Apolonia from being alone with Marisela and allowing contact only under Hector's supervision. On appeal, both the Commissioner and Law Guardian contended that the Family Court erred by placing Marisela back in her father's custody pending a neglect hearing, citing unresolved concerns regarding Apolonia's mental health and Hector's apparent subservience to her. The court acknowledged that although there was no evidence of physical abuse, the Family Court Act does not necessitate actual injury for a finding of imminent risk. The court referenced prior cases to illustrate that neglect can be inferred from Apolonia's behavior, including exposing Marisela to traumatic situations and demonstrating an irresponsible caretaking approach, such as her ignorance about her children's whereabouts. It was concluded that the protective order was inadequate to ensure Marisela's safety, as Hector's intimidation by Apolonia compromised his ability to protect her, and his reluctance to separate from Apolonia indicated misplaced priorities. The ruling specifically pertains to the father's section 1028 petition and does not address the ultimate resolution of the neglect case.