New York – Matter of Gavin S., 2016 NY Slip Op51234(U)
In a recent case out of Kings County Family Court, the court examined a proceeding commenced by the Administration for Children’s Services (ACS) against a mother, Ms. S. who suffered from several mental illnesses including schizo-affective disorder, bipolar disease, and post-traumatic stress syndrome. Ms. S. was hospitalized three times in the space of approximately five months for her mental condition. ACS alleged that Ms. S is unable to care for the subject child, Gavin S., due to her mental illness and as a result Gavin is a neglected child. Under the Family Court Act (FCA), a neglected child is a child under eighteen years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care. ACS believed that Gavin was in risk of imminent danger due to Ms. S mental impairments.
At time of this decision, Gavin was living away from Ms. S in foster care. The court ruled against ACS and found that ACS failed to establish that Gavin’s life or health were placed in imminent risk as a result of Ms. S’s mental illness. The court was critical of the ACS’s handling of the case and stated, “ACS’s speculative concern that Ms. S might have to be hospitalized again for mental illness cannot serve as a basis for a finding of “imminent risk”.
Moreover, the court specifically found that, despite her mental illness, Ms. S. acted in a responsible manner to protect Gavin. For example, she sought help from social services to help her manage her condition. The court found that Ms. S consistently attended her group therapy and psychiatrist appointments. The homemaker who assisted Ms. S at her apartment testified that Ms. S. took great care of Gavin and was proactive in his care and in making arrangements for his care when she needed help. After careful consideration of the facts, the court ordered that Gavin to be returned to his mother.
Bottom line: There are many factors a court will consider when deciding to remove a child from a parent’s care. A parent with a mental condition will not lose custody of a child unless that child is in imminent risk of harm.