SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT x In the Matter of: SaaS =a Docket No, TS SSR, Acchild under Eighteen Years of Age Allleged to be Neglected by AMENDED AFFIRMATION aS ae EMMA S. KEITERINGHAM. , an attorney admitted to practice, affirms under penalty of perjury and pursuant to CLPR § 2106 the truth of the following: 1 1am associated with The Bronx Defenders, attorney of record for AAERD, the respondent-appellant father herein. 1 make this amended affirmation in support ofthe motion ofthe respondent-appeliant father for an order reversing the order by the Honorzble SMI of the New York Family Court County of the Bronx, denying him supervised visitation at Riker’s Correctional Facility with his ‘en-mont-old daughter, TS, ‘This amended affirmation is made upon information and belief, unless otherwise indicated, based on iespection ofthe record of the case available to counsel and conversations with the parties and the Court. ‘The instant proceeding was of the Family Court Act, alleging that gion SIMERI neslected the subject children ‘SRR. SAE NNN «> ete (4 0 20 correct copy of the neglect petition is annoxed hereto as Exhibit A.) ated by the filing on July 10, 2009, of a petition under Article Ten5. The family composition is as follows: IMM is the mother of the subject children dB EE ES 2s Sse oh: GED is bo diciogical aher A 6. Onor about July 9, 2008, the respondent-appellant father was arested and charged with a homicide. He is currently incarcerated and awaiting trial at Riker’s Island facility for men, 15-15 ‘Hazen Street, East Elmhurst, New York 11370. 7. On August 18, 2009, undersigned counsel appeared for the respondent-appellant father, who was not produced from jail to attend the Family Court date. 8 Undersigned counsel made an application on the respondent-appellant’s behalf for supervised visitation between cespondent-appellant and his daughter SARE to be supervised by the petitioner-appellee’s Children of Incarcerated Parents Program (hereinafter CHIPPS). 9. Upon the objection of both the attorney for the child and the petitioner, the Court denied counsel’s application. (A true and correct copy of the order denying visitation is annexed hereto as Exhibit B.) 10, Undersigned counsel asked the Court to conduct Hearing as to the respondent-appellant’s application for supervised visitation and the Court refused to conduct such hearing. ‘The Court Has Authority to Order Visitation Supervised by Petitioner 11, Ihis well established under New York law that prior to the entry ofa dispositional order, a respondent shalt “have the right to reasonable and regularly scheduled visitation” with the child ‘and shall “be granted reasonable and regularly scheduled visitation unless the court finds that the child's life or health would be endangered thereby.” See N-Y. Family Court Act § 1030 (a) and ©. 12, In this case, respondent appellant requested supervised visitation with his daughter through the ‘CHIPP program. Under this program a trained caseworker would travel with the child to Rikers Island for family visitation day which is held one Tuesday 2 mouth. (See CHIPP pamphiet attached as Exhibit C) Petitioner's contention thatthe Court has no authority to order a social 2services employee to facilitate and supervise visitation with the respondent-appellant inthis case is incorrect. The petitioner contends that because the child {GMBH is paroled to her mother, rather then placed in foster care, the respondent appellant has no right to reasonable and regularly scheduled visitation facilitated by ACS. This position is untenable. a. There is nothing in Article Ten that limits this requirement of visitation or ACSs corresponding obligation to facilitate it where the child is paroled 10 the care of a non respondent parent rather than placed in foster care forthe duration of an Article Ten case. 13. The petitioner has filed a neglect petition, and ACS is required by law to make reasonable efforts to encourage and strengthen the parental relationship. See N.Y. Family Court Act § 1055(c).. ‘These efforts to strengthen the relationship include facilitating visitation, Sec id, This obligation does not end where the child is not in a foster home. Nor is ACS absolved from its obligation to make reasonable efforts to encourage and strengthen the relationship when the parent is incarcerated. Indeed, the Social Services Law of New York requires it. See N-Y. Soc. Servs. Law § 384-070015). 14, Here, regardless of the fact that the child is paroled to the non-respondent mother, the Court may direct local department of social services to provide services, including visitation, to a respondent parent. See N.Y. Family Court Act § 1055-b(b). A recent lower court decision levied the authority of a family court to order services for a respondent parent when the child ‘was living with the non-respondent parent. See In the Matter of B., ~ N.Y.S.24 ~-, 2009 WL 2195785 (Family Ct, Onondaga Cly 2009). The Court addressed the amendments made to the Family Court Act which govern conflicts between custody proceedings under Article Six and neglect proceedings under Article Ten. Until a family court has granted custody to the non- respondent parent at disposition, it retains authority to order the social services agency to provide services for a non-custodial respondent parent. To grant custody to the non-respondent parent, the ‘court must find that the parent has filed a custody petition and that the child will not be jeopardized ifthe respondent is no longer receiving services. In this case, the non-respondent 315. 16. Ww. parent has not filed a custody petition pursuant to Article Six of the Family Court Act, and the Family Court has not awarded her custody. I'that were the case, the Family Court's jurisdiction over the Article Ten proceeding would be concluded. Here, the Article Ten case is pending and the Court has the authority to order visitation and services forthe respondent father. ACS’s position in tis case is belied by its own policy memoranda and the rules and requirements of the CHIPP program. Department of Corrections regulations make clear that when a child pasticipatos in family visitation, the child may not visit accompanied by the pareat. This demonstrates that the CHIPP program can be set up where the child is paroled to the care of a non-respondent parent, Indeed, the CHIPP program has been utilized to set up visitation between an incarcerated parent and a child subject of the proceedings in many prior cases, of which the petitioner should be aware. ‘The Court Brred in Refusing to Order Supervised Visitation “The denial of visitation righs is considered a dtastic remedy and such an order should be based on substantial evidence that visitation would be detrimental tothe child’s life, health or safety ‘Seo N.Y. Family Court Act §1030(c); Janousek v. Janousek, 108 A.D.2d 782, 485 N.Y.S.2d 305 (2a Dep't 1985). ‘Asa general rule, @ parent's incarceration, standing alone, is nota sufficient basis upon which to deny visitation, see Matter of Hadsell v. Hadsell, 49 A.D.2d 853, 672 NY S.2d 478 (3d Dep't 1998); In the Matter of Randy K., 263 A.D.2d 624, 692.N-Y.S.24 804 (2d Dep't 1999), and visitation is presumed to bein the child's best interest despite a parent's incarceration. See Metter ‘of Howard v. Barber, 47 A.D.3d 1154, 850 N.Y.S.2d 286 (3d Dep't 2008). Indeed, the petitioner is required to undertake diligent efforts to make suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visitation isin the best interest of the child. See N.Y. Soc. Servs. Law § 384 bO KOE).18, Here, the Court erred by presumptively denying the respondent-appellant father visitation with bis daughter based on his incarceration without conducting a hearing and based on the absence of any evidence that visitation would be detrimental to the child SAAT life, health or safety or based on any evidence that visitation with her father is not in her best interest. A. Visitation Would Not Place the Child's Lit 3 Safety at Risk 419. The respondent-appellant father is requesting visitation atthe Rikers Island facility, where he is incarcerated. 20. Visitation at the Rikers Island facility would not jeopardize CERRBB's life, health or safety, as respondent-appellant does not pose a threat to her life, health and safety, and the facility is safe, secure and welcoming for child visitors. 21. Although facing serious charges, the respondent-appellant father has not been convicted of any crime, and is incarcerated awaiting tral. The respondent-appellant has no prior criminal record. 22, Furthermore, the respondent-appeltant father has never been charged with any crime directed toward MEEEIMP herself or the non-respondent parent. 23. In addition, the crime does not relate to the father's parenting or well being ofthe child, distinguishing respondent's circumstance from those of other incarcerated parents who have been denied visitation. See Ceasar AR, v. Raquel D., 179 A.D.24 574, $78 N.Y.S.24 831 (I" Dep't 1992) (exceptional circumstances justified lack of visitation when father was convicted of murdering mother and raping step sister). At no time during the crime was MRR s Life, health cor safety in danger. The respondent-appellant’s alleged actions are not included inthe list of ‘behaviors dismissing the petitioner's responsibility to make reasonable efforts to reunite the child and respondent parent. See Family Court Act § 1039-b(b). 24, Prior to his arrest, respondent-appellant was responsible for NME's care-taking three nights pr week when she stayed with him at his family’s house. At no time during these extended interactions was &MMMMN’s life, health or safety at risk. Quite the opposite, SIME and the appellant-respondent developed a loving bond during their time together. 525. Finally, there is no order of protection from Criminal Court prohibiting the responddent-appeltant father from having contact with his daughter. 26. The petitioner recognizes that even in the case of parents with long-term sentences, visitation does not place children’s lives, health or safety at risk; rather, “visits that support the ongoing relationship between the parent and child may remain a vital pat of the service plan.” See ‘Administration of Children’s Services Memorandum, “Permanency Planning with Incarcerated Parents,” Aug. 3, 2006. (Attached as Exhibit D.) Respondent-appellant’s potential long-term incarceration, even for a violent crime, is not sufficient, by itself, to conclude that Ms life, health or safety will be at risk if visitation were to occur. 27. Visitation would be facilitated by the CHIPP program, which facilitates parent-child visitation on Rikers Island. (See Exhibit C.) 28. CHIPP was created in 2000 by the petitioner-appellee based on the premise that parents continue to play a significant roe in their children’s lives, despite their incarceration, and facilitating parent-child contact can greatly help children. 29, Visitation would occur during visiting hours at a secure correctional facility in the visitation area. ‘The visitation area is clean and secare. 30, Bach visit between the child and the respondent-appellant will be facilitated and supervised by a cceseworker from the CHIPP program who is trained to encourage healthy visitation between a parent and chitd, 31. Visits facilitated by the CHIPP program take place in a child-friendly environment with tables, chairs, murals on the wall and toys for the parents and children to play with. 32. CHIPP facilitated visits are preferable forthe children visiting their parents because they take place on Tuesdays, when no other jail visitation takes place, and the wait for processing is shorter and the visitation center is occupied only by parents and their children.33. Because visitation would be facilitated by CHIRP — the goal of which is to make jail visitation child sensitive — and there is no evidence that the respondent-appellant father places his daughter's life or heath at risk, the Court should order visitation supervised by CHIPP. B. Visitation Is In The Child WMMBs Best Interest 34, Parental visitation is ordinarily considered to be in the best interest of the child. See Matter of Wise v. Del Tora, 122 A.D.2d 714, 505 N-Y.S.2d 880. This reflects the understanding that a child’s welfare is best served by his being nurtured and guided by both natural parents. See ‘Twersky v. Twwersky, 103 A.D.2d 775, 477 N-¥.S.2d 409 (2d Dep’t 1984). The Court of Appeals has written that “{hJow valuable the mature guiding hand and love of a second parent may be to a child is taught by life itsel£” See Weiss v. Weiss, 52 N-Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E2d 377 (1981). A Family Court has noted that “denying visitation can have unforeseeable consequences for the child’s future.” See Matter of Doe v. Doe, 86 Misc.2d 194, 204, 378 NY.S.24 259, 35. The petitioner acknowledges that visitation that supports an ongoing relationship between a child and parent, even when the parent is serving a long-term sentence, may be vital tothe child’s needs and in their best interest. See Administration of Children’s Services Memorandum, “Permaneney Planning with Incarcerated Parents,” Aug. 3, 2006. (Attached as Exhibit C.) Because visitation is often in the best interest of children, the petitioner recognizes that they have an obligation to facilitate such visits, including between incarcerated parents and their children, In fact, the petitioner demands that incarcerated parents “be approached withthe same urgency and respect” and that they require the same reasonable efforts as parents who are not incarcerated. Byen when the goal is not return to parent, the petitioner still requires an obligation to provide parent-child visits with incarcerated parents. Indeed, even in situations where a respondent-parent is facing a long-term sentence, the petitioner agrees that visits that support the continued child- parent relationship may be in the child’s best interest.36, AMIN is ton months old snd, a this point, cannot make her wishes known reganding visitation with her father 31, Denying MIRE the opportunity for present connection to her father is notin her best interes. A New York court has described a child’s need to visit with her father both as spiritual and as reat as the need for economic support. See Gondman v. Goodman, 17 Misc:24 712, 184 N.Y.8.24 399 (Supreme Court, Kings County 1959). This is true in I's case, as she has already developed a sigaificant relationship with her father, the respondent-appellant. The respondent-appellant father played a considerable caretaking role in her life prior to incarceration. MBBBBIB spent at Yeast tree nights a week with the respondent-appellant father and is family. “The respondent-appellant father was attentive to his danghter’s needs, shared inthe caretaking responsibility for her, including feeding, bathing and playing with her, and taking her to the doctor when she was il. SMM and her father were attached and had a strong bond between ‘them, Research shows that children bewween the age of six months and three years of age are ‘yunerable to separation from a significant caretaker and more likely to experience emotional disturbances. See Visitation with Infants and Toddlers in Foster Care: What Judges and. Attorneys Need to Know, Margaret Smatiga, ABA Center of Children and the Law (2007), at 5. (Attached as Exhibit E,) Denying {SMB che opportunity to visit the cespondent-appellant, when ‘he is unable to share her own opinion, takes away her right to continue her relationship with her father. See Matter of Doe v. Doe, 86 Mise.2d 194, 197, 378 N.Y S.24 269 (1975) (visitation is a child's tight). 38. Denying RMNBBB a present connection to her father isnot inher best interest because research shows that visitation with an incarcerated parent after a parental separation positively affects @ child's emotional adjustment tothe loss. See Denise Tohnston, “Parent-Child Visitation in the Jail cor Prison,” in Children of Incarcerated Parents, Katherine Gabel and Denise Johnston, eds. (1995), 2 138. SEI even ar her young age, has suffered from the loss of her father’s presence, as he is no longer abe to care for her ashe did before. Visitation would ease the pain of 8this loss foc IND. Many authorities on child-parent prison visitation recommend that id, a 139. is in best interests to continue her significant relationship with her father as quickly as possible, ro ease visitation begin as soon as possible with an incarcerated parent. S the sense of loss from their separation. 39. Denying SURI «future connection to her father is also notin her best interest, Research shows that visits berween a child and their incarcerated parent provide a child with 2 sense of roots, connectedness and identity. Research by psychiatrists and psychologists has also revealed the {importance of child’s links to known ancestral, religious, ethnic and cultural backgrounds, Studies indicate that shrouding a child’s background in an air of mystery, even for an infant separated from a parent at bitth, ean cause psychological harm, retarding emotional development and self identity. See Matter of Adoption of Anthony, 448 N.Y.$.2d 377, 113 Mise.2d 26 (N.Y. Fam. Ct. Bronx Cty 1982) (citing multiple sources). 40, Furthermore, denying SMEs future connection to her father is not in her best interest, because it may lead (MMMM to struggle with negative feelings towards those who terminated an {important relationship in her life. A child who comes to recognize later in life that her parent's efforts fo continue the parent-child relationship were thwarted may feel anger and resentment toward her caregivers or those who frustrated the relationship. See In re Tristram K., 25 A.D.3d 222, 228, 804 N.Y.S. 83 (1 Dep't 2005). Denying SREEH the right 10 choose for herself ‘whether she will have a relationship with her father is notin her best interest. 41. Allowing for visitation between AIIM and her father does not mean letting the respondent appellant off the hook for any crime he may have committed —it means providing the child GREER with the future opportunity to make sense of a difficult situation and to reconcile who she is, This is essential foc SRNR setf-estoem ond health well being, See The Importance of a ‘Secure Base: Improving the Outcomes of Youth Aging Out of Foster Care whose Parents Are or Have Been Incarcerated, Tanya Krupat, The Osborne Association, May 2008 (Attached as Exhibit F.)‘The Family Court Erred b ing 42. This Court should reverse the order of the Family Court and direct the Family Court to conduct a hearing in accordance with Family Court Act § 1030(¢). 43. Denial of visitation rights to a natural pareat is @ drastic remedy and courts have held that such a remedy should only be invoked for compelling reasons, and only when there is substantial evidence. that visitation would be detrimental to the child. Indeed, an evidentiary hearing is generally necessary to determine the best interests of the child unless there is enough information before the court to conduct an independent review. See Matter of Howard v. Barber, 850 N.¥.S.2d 286, 47 A.D.3d 1154 (3d Dep't 2008) (holding thatthe family court erred in dismissing the incarcerated father’s petition for visitation without a hearing); Katz v. Katz, 467 N.Y.S.2d 223, 97 A.D.2d 398 (2d Dep't 1983). 44, Here, the Court heard neither testimony nor evidence in regard fo the CHIPP program and the safe and healthy visitation it affords The Issue is Properly Before the Court 45. The petitioner's claim that the issue of visitation is premature without a hearing on the temporary ‘order of protection is without merit. The temporary order of protection was issued by the Family Court. There is no order of protection issued by a criminal court that prohibits contact between $BMMMBend her fesher. Thas, the Family Court has complete discretion to modify the order of protection to allow for visitation. See N.Y. Family Court Act § 1061. 46. A showing that visitation is in the best interests of 4MIMMMBIB would quality as good cause shown to modify the temporary restraining order issued by the Family Court under the Family Court Act. ‘See N.Y. Family Court Act § 1061. It is entirely within the purview of the Family Court, ii finds that visitation isin M's best interests, to modify the temporary restraining order to 8.24767 (34 provicle for such. See, e.g,, Gunthorpe v. Cathey, 52.A.D.3d 907, 908, 859 N Dep't 2008) (Family Court issued a temporary order of protection which it later amended to allow visitation with a respondent father).WHEREFORE, itis respectfully requested that the Court grant the relief requested herein and order a hearing to determine whether there is any risk to the child’s life or health and whether visitation is in her best interest pursuant to Family Court Act § 1030(c). Dated: Bronx, NY October 1, 2009 Emma S. Ketteringham ‘Counsel for Respondent ‘The Bromx Defenders 860 Courtlandt Avenue Bronx, NY 10451 Fty