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ALTHOUGH THE PARENTS HAD BEEN FOUND TO HAVE ABUSED THE CHILDREN, THEY HAVE DEMONSTRATED THEY ARE LOVING AND CARING PARENTS; IN LIGHT OF THE CHILDREN’S EMOTIONAL PROBLEMS ASSOCIATED WITH FOSTER CARE, THE MOTION FOR A TRIAL DISCHARGE TO THE PARENTS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Family Court, determined the motion for a trial discharge of the children to the parents, who had been found to have abused the children, should have been granted:

Family Court’s denial of respondents’ motions pursuant to Family Ct Act § 1061 for a trial discharge of the children Ashlynn and Yeovanny to their care, a position vigorously supported by the foster care agency and the attorney for the children, does not have a sound and substantial basis in the record … . At the time of the motions, these children had recently been placed in their fourth foster home, and the agency was already investigating a fifth placement. Meanwhile, respondents had complied with all services, including full mental health evaluations ordered by the court at disposition, regularly attended unsupervised visitation, and had received uniformly positive reports from those who observed them interact with the children that they were loving and caring parents whose parenting skills were continually improving.

Under these circumstances, although respondents continued to maintain that Ian and Yeovanny’s injuries were accidental, “their acceptance of ultimate responsibility for [the children’s] injuries [was] demonstrated by their conduct” … . In view of the parents’ demonstrated ability to care for the children, ACS [Administration for Children’s Services] failed to show that it would be in Ashlynn and Yeovanny’s best interest for continued foster placement … especially when weighed against the emotional harm on children when they are removed from the home … . Such emotional harm was amply documented here and disturbingly downplayed by both petitioner and the court. The record shows that Ashlynn suffered from severe anxiety, nightmares, and other mental health issues that her therapist and agency caseworker attributed to being separated from respondents and shuttled through a succession of foster care placements. At the hearing on the motions, the agency caseworker submitted evidence that Ashlynn had to be taken to a hospital emergency room for night terrors shortly after she began living in her fourth foster home. Based on the foregoing, respondents showed “good cause” under Family Ct Act § 1061 for a trial discharge. Matter of Ashlynn R. (Maria R.-Yeovany R.), 2020 NY Slip Op 07726, First Dept 12-22-20

 

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THE OMISSION OF NON-ELEMENTAL FACTUAL INFORMATION, HERE THE TIME OF THE INCIDENT,... A PHOTOGRAPH OF DEFENDANT WITH A HANDGUN TAKEN SIX WEEKS BEFORE THE SHOOTING...