The issue in this case is whether this 14 year old child's best interests will be served by granting a final order of custody to the out of state non-respondent father without any further orders or continuing the child's placement in foster care where this child has been moved to his fifth non-kinship foster home.

Procedural History

On September 29, 2009, London H., a resident of the state of Georgia, filed for custody of his son, Jadaquis B. (DOB 11/14/98). While Mr. H.'s custody petition was pending, on February 23, 2010, ACS filed neglect petitions against the Respondent mother, Sameerah B., with respect to Jadaquis and his three siblings, Joshua, Jaziah and Dashell, alleging inadequate guardianship and educational neglect. Mr. H. was not a Respondent on the neglect case. All the children were temporarily released to the Respondent mother under ACS supervision. On July 27, 2010, ACS amended the petition to include allegations that the Respondent mother was hitting Joshua and Jaziah with belts. All the children were placed into foster care at that time, and Jadaquis was placed in a non-kinship foster home and separated from his siblings. On November 30, 2011, the court issued a written decision (J. Silva) entering a finding of neglect based on educational neglect, medical neglect and excessive corporal punishment. On that same date, a dispositional order was issued placing the siblings, Joshua, Jaziah and Dashell in the custody of ACS with an immediate trial [*2]discharge to the Respondent mother.^[FN1]

Disposition with respect to Jadaquis was deferred but a determination was made that he should remain in foster care pending a resolution on the father's custody petition. During the pendency of the neglect case, an Interstate Compact on the Placement of Children (hereinafter ICPC) was submitted on three separate occasions for the approval of the father's home as a suitable placement for Jadaquis. Georgia child welfare authorities denied the ICPC in April 2011. The ICPC was re-ordered in November 2011, however it was again denied. Thereafter, the court ordered the ICPC for a third time. The court also authorized extended visits between Jadaquis and his father in Georgia during school vacations in August 2010, April 2011, and February 2012.

On September 6, 2012, on the consent of ACS and all parties, and upon the parties' receipt of information from Georgia that the third ICPC request was approved, the court (J. Silva) issued a final order of custody pursuant to Article 6 of the Family Court Act in favor of Mr. H., thereby concluding the disposition on the neglect case. On or about September 14, 2012, ACS filed an Order to Show Cause seeking to modify the order of disposition granting final custody of Jadaquis to London H. to placement with ACS. The basis for ACS's request was that the state of Georgia had sent the ICPC approval in error when it had, in fact, denied the ICPC for the third time. The foster care agency, Coalition for Hispanic Families, learned of the denial while Jadaquis was already on an airplane en route to Georgia. Upon landing at the airport in Georgia, Jadaquis learned that he would not be permitted to go to his father and was required to get back on a plane to New York. Upon his return to New York, Jadaquis was placed in a different non-kinship foster home. Pending a hearing on the Order to Show Cause, Jadaquis was remanded to the custody of ACS. On September 18, 2012, the return date of the Order to Show Cause, this court ordered attorneys to submit briefs on the issue of whether the ICPC applies in the instant case and whether the subject child can be sent to the receiving state if the ICPC has been disapproved. On December 11, 2012, the court commenced a consolidated disposition and custody hearing pursuant to Family Court Act §1055-b.

Relevant Law

Family Court Act §1055-b authorizes the court to grant custody of the subject child to a relative pursuant to Article 6 at the conclusion of a dispositional hearing held under Article 10 of the Family Court Act if the following conditions are met: (1) the relative has filed a petition for custody of the child pursuant to Article 6; (2) the court finds that granting custody of the child to the relative is in the best interests of the child and that the safety of the child will not be jeopardized if the respondent is no longer under supervision or receiving services; (3) the court finds that granting custody of the child to the relative will provide the child with a safe and permanent home; and (4) all parties to the child protective proceeding consent to the order of custody or if there is no consent, after a consolidated hearing on the neglect and custody petitions, the court finds that granting custody of the child to the relative is in the child's best [*3]interests.

Georgia's denial of the ICPC does not preclude this court from issuing an order granting custody to the non-respondent father. The First Department recently held in Matter of Louis N., 98 AD3d 918 (1st Dep't 2012) that "compliance with the Interstate Compact on the Placement of Children (ICPC) was not required" because the award of custody to the out-of-state relative was made under Article 6 of the Family Court Act, "to which the ICPC does not apply." The court found that the Family Court "appropriately held a consolidated dispositional hearing to resolve the custody and abuse/neglect petitions." Id. at 919. Counsel for ACS argues in her memorandum of law that Matter of Louis N. does not control because it fails to distinguish the court's prior decision in Matter of Tsapora Z., 195 AD2d 348 (1st Dep't 1993), which held, under similar facts, that the ICPC applies, and that a child cannot be sent to the receiving state without ICPC approval from the receiving state. The Court notes that this case was decided over nineteen years ago prior to the enactment of FCA §1055-b and FCA §1089-a, which amended the Family Court Act to authorize the granting of custody pursuant to Article 6 as part of the Article 10 neglect disposition or at the permanency hearing stage.

Discussion

The consolidated hearing took place on December 11, 2012, December 12, 2012 and December 20, 2012. The Attorney for the Child presented the testimony of London H. and his wife, Audra H.. ACS chose not to call any witnesses and presented only documentary evidence- the ICPC denial from April 2011 (Petitioner's 1), the ICPC denial from February 2012 (Petitioner's 2), and the ICPC denial from August 2012 (Petitioner's 3). The Respondent mother did not present any evidence, however she was in full support of an award of custody to the father. All parties stipulated on the record that Jadaquis wants to live with his father in Georgia and that this has been his position since he was initially removed in July 2010. The parties further stipulated to the fact that Jadaquis was removed from his latest foster home on December 19, 2012 due to an open investigation against the foster parent, and has now been placed in his fifth non-kinship foster home since his initial removal. At the end of the hearing on December 20th, counsel delivered oral summations and decision was reserved.

The court has had the unique opportunity to hear the testimony of the witnesses, observe the demeanor and assess their credibility and review the documentary evidence presented. ACS's documentary evidence establishes that Mr. and Mrs. H. reside in an appropriate 3 bedroom, 2 bathroom home in Millen, Georgia with their son London H., III, who is now 6 years old. The evidence further establishes that Mr. London is financially stable, medically healthy, has no criminal record, and no child welfare involvement. According to Petitioner's 1, the first ICPC request was disapproved because of concerns regarding a 2001 Child Protective Services (hereinafter CPS) case involving "child on child sexual abuse" that was substantiated against Audra H.. Additionally, the Georgia child welfare officials reported concerns that Mr. and Mrs. H. made "attempts to mislead the agency" because of "false statements" on the medical evaluation form that was submitted because Audra H. completed the section of the form that was supposed to be completed by a [*4]physician. Other than those vague statements, no further details are provided about the alleged false statements or the 2001 case.

Petitioner's 2 demonstrates that the ICPC was denied for a second time in February 2012 because of Mrs. H.'s 2001 CPS case which involved her son, Floyd B., who was 10 years old at the time, fondling a 4 year old niece that was in her care. There is no indication that a home visit was made pursuant to that second ICPC request, and it appears that the decision was based on information that was obtained eleven years prior. The Georgia Department of Family and Children's Services expressed concerns that this son, who is now 21, may have contact with Jadaquis. There was also vague concern expressed about Mrs. H.'s younger son, Cedric R., who was serving time in a detention center for sexual behaviors.

Petitioner's 3 clarifies that the 2001 CPS case was received on September 25, 2001, and closed less than one month later on October 24, 2011. No case was ever filed in court. Petitioner's 3 further describes the H.s as "eager to comply" with the agency's requirements and evaluation process and that they have a "strong desire" to have Jadaquis in their home. It additionally notes that their drug screens were negative, that Mr. H. has health insurance from his employer, which was Walmart at the time, and that Mr. H. was willing to permit Jadaquis to maintain a relationship with his mother in New York through visitation and frequent phone contact. It appears that the basis for the denial of the third ICPC request was one conversation that a Georgia child welfare worker had with Cedric R.'s grandmother, Doris B. where Ms. B. indicated that Cedric lives between her home in Twin City, Georgia and his mother, Audra H.'s home, and the concern that Jadaquis might be in contact with Cedric.

The court found both Mr. and Mrs. H. to be candid and forthcoming witnesses. Much of their testimony was supported by the documentary evidence submitted by ACS. Mr. H. testified that he resides in Millen, Georgia with Audra H., his wife of seven years, and their six year old son London H., III. For the last year Mr. H. has been employed as a corrections officer through the Corrections Corporation of America (CCA) and he works the 12 hour night shift out of Jenkins Correctional Center. Mr. H. noted that he went through an extensive background check as part of his current employment including a criminal background check, drug testing, and police academy training. Prior to his employment as a corrections officer, Mr. H. was employed at a Walmart Distribution Center where he operated a fork lift for 4 ½ years. Mr. H. has a total of five sons- Mark, age 18, Raykwon, age 15, Diante, age 17, Jadaquis and London. Mr. H. sees Mark and Raykwon on a weekly basis since they reside with their mother nearby in Georgia. Mr. H. speaks to Diante weekly but does not see him often because he lives in Staten Island. He indicated that he pays child support for Jadaquis, Mark, Rakywon and Diante. Mr. H. indicated that Jadaquis came to live with him in Georgia for 4 months in 2009, however prior to that time, he last had contact with Jadaquis when he was only two years old.

Mr. H. testified that he never lived with the Respondent mother and lost contact with the respondent mother after he moved from New York to Georgia. The Respondent mother was the one who reached out to Mr. H. in 2009 asking for Jadaquis to come live with his father, and Mr. H. [*5]welcomed Jadaquis into his home and embraced the opportunity to get to know his son. Mr. H. did acknowledge that it was "rocky" in the beginning since Jadaquis was enrolled in Jenkins County Middle School in a regular 7th grade class, and he did not have knowledge that Jadaquis had an IEP from New York and required an educational setting with less students. Mr. H. eventually enrolled Jadaquis in a special education class and even sought counseling for Jadaquis, however he had to bring him back to New York 3 weeks later because he was having financial difficulties. Mr. H. indicated that he was taking care of Jadaquis in his home, however he was still having child support deductions taken directly out of his paycheck. After bringing Jadaquis back to New York, Mr. H. filed the instant custody petition and has actively pursued getting Jadaquis in his care since that time. The extended visits with Jadaquis over holiday school breaks have all reportedly gone well and Jadaquis enjoys those visits.

Audra H. testified that she is in full support of Mr. H. obtaining custody of Jadaquis. Ms. H. is a licensed practical nurse and is employed at Optim Medical and Healthcare Hospital as an emergency and trauma nurse. She is currently in college pursuing a higher degree in nursing. Ms. H. was candid with the court and testified openly about her criminal background. She acknowledged a shoplifting conviction and depositing bad checks in the 1980s and early 1990s and a conviction for identity theft in 2007. In response to the court's questions about the nature of the identity theft, Ms. H. was forthright about the fact that she used her great aunt's credit card and charged a $70 dress at JC Penney's. Ms. H. paid a $1500 fine and received three years of probation as a result of that criminal case. Ms. H. also testified that in 2001, prior to meeting Mr. H., she had contact with the Georgia Child Welfare system because her son Floyd, now age 21, touched the genital area of a niece that Ms. H. was caring for. Ms. H. further disclosed on the stand that her other son, Cedric, now age 19, has a juvenile conviction for aggravated sexual molestation because he asked one of his cousins to perform oral sex. Both Mr. and Ms. H. indicated that this took place in their home in approximately the year 2008 and Cedric admitted doing this. Ms. H. stated that Floyd has been incarcerated in Athens, Georgia for the last two years because of a burglary charge, and that she expects him to be incarcerated through August 2015. Prior to his incarceration, Floyd was residing with his girlfriend and infant child in Hazelhurst, Georgia, a town that is approximately two hours away. Her son Cedric, currently lives in Twin City, Georgia, with his grandmother, Doris B.. Twin City is approximately 20-25 minutes away from Millen.

Ms. H.'s testimony is supported by the Attorney For the Child's Exhibit 1, which is a letter dated November 30, 2012 from Cedric's probation officer at the Department of Juvenile Justice in Swainsboro, Georgia, indicating that Cedric R. has resided with his paternal grandmother, Doris B. at 977 Coursey Road, Twin City, Georgia, since July 1, 2011. Mr. H. also confirmed that Cedric does not live with him and he has not seen Cedric since last winter, over a year ago. Mr. H. indicated that Cedric has come over in the past to assist with chores such as raking leaves, mowing the lawn on their two acre property and washing the car. Mr. H. stated that Jadaquis has never even met Cedric, but he did meet Floyd approximately two years ago, prior to Floyd's incarceration. On one occasion, Floyd came over with his girlfriend and newborn baby and visited the family in the living room. Jadaquis was not alone with Floyd at any point in time. Mr. H. made it clear that if Floyd or Cedric were to come to his home in the future, he would not permit Jadaquis to be unsupervised with them, [*6]just as he has never permitted his younger son London to be alone with them. The court has no reason to believe that Mr. H. would not be able to adequately protect Jadaquis and exercise good judgment in that regard.

ACS contends that sending Jadaquis to live with his father in Georgia will place him at risk because Georgia has concluded that Jadaquis will not be safe in the home because he may have contact with Cedric R. or Floyd B., yet the court notes that 6 year old London has always been in the care of Mr. and Mrs. H. and despite Georgia's disapproval of the father's home for Jadaquis, there is no child welfare involvement with respect to London. London's medical and educational needs are met by Mr. and Ms. H.. No report of suspected abuse or maltreatment has ever been made involving London, there is no CPS supervision over the home, and there are no court proceedings pending. The court finds it entirely inconsistent that the child welfare authorities in Georgia could make a determination that Jadaquis would be unsafe in the home with London and Audra H. yet they have taken absolutely no action with respect to a six year old in the home. Notably, no testimony has been presented to explain any of the findings that were made by Georgia. With respect to ACS's argument that Mr. and Mrs. H. have falsified medical documents, the court finds that there is insufficient evidence to support that this occurred. The ICPC documents show that Ms. H. wrote in a section of the medical form that a physician is supposed to write in. There is no clear explanation to support the agency's conclusion that documents were falsified or that the H.s intended to deceive. In any event, the court does not view this as a safety concern that would place Jadaquis at risk. The H.s have cooperated with the ICPC process every step of the way and have remained steadfast in their commitment to have Jadaquis in their care despite the ICPC denials.

This court fails to see how ACS's plan to keep this 14 year old teenager in stranger foster care, in his fifth non-kinship foster home, until some unspecified time in the future, serves this child's best interests when he has a father, a non-respondent in this case, who can provide him with a safe, loving, and nurturing home.

Accordingly, after a consolidated hearing on the child protective proceeding under Article 10 of the Family Court Act and the custody petition under Article 6 of the Family Court Act, it is



ADJUDGED, that the father, London H. has filed a petition for custody of the subject child, Jadaquis B., pursuant to Article 6 of the Family Court Act; and it is further



ADJUDGED, that it is in the best interests of the child, Jadaquis B., to award sole custody to the father, London H., with the Respondent mother to have reasonable contact with the child as can be arranged between the parties, and that the safety of the child will not be jeopardized if the Respondent mother is no longer under supervision or receiving services; and it is further [*7]



ADJUDGED, that an award of custody of the subject child, Jadaquis B., to the father, London H., under Article 6 of the Family Court Act will provide the child with a safe and permanent home; and it is further



ADJUDGED, that the Order to Show Cause filed by ACS seeking to place the subject child, Jadaquis B., in the custody of the Administration for Children's Services is denied, and it is



ORDERED, that the Final Order of Custody to the father, London H., is reinstated.

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.

Dated: December 21, 2012ENTER

_____________________________________

Hon. Lillian Wan