From In the Matter of Isaiah D., decided last week by Justice Robert Hettleman of the New York Family Court (Kings County):
[The Administration for Children’s Services (ACS)] has proven by a preponderance of the evidence that Ms. D.W. and Mr. W. neglected the [then-13-year-old] child Isaiah pursuant to FCA § 1012 in the following respects: (1) the parents used excessive corporal punishment on Isaiah on April 5, 2023; (2) the parents failed to allow the child to return to the family home after he was cleared for release from the hospital, and the parents failed to provide a meaningful or sufficient alternative plan; and (3) Ms. D.W. emotionally neglected the child by using anti-gay slurs in front of and towards the child, denigrating his lifestyle, and failing to sufficiently support him in the face of her disapproval.
Here’s the emotional neglect analysis:
Emotional and/or verbal abuse can constitute neglect under the Family Court Act, where a respondent’s actions place the child at imminent risk of emotional or mental harm. In such circumstances, contrary to the arguments of counsel, child welfare cases do not violate a parent’s right to free speech under the First Amendment. Rather, the very nature of Article 10 cases involves a balance between a parent’s fundamental right to parent their children as they see fit against the state’s interest in protecting children from parenting that fails to meet a minimum standard of reasonableness.
In this case, Isaiah described that his relationship with his parents had deteriorated since he had identified himself as gay. He stated that his parents did not support that kind of lifestyle, that they had locked him out of the home in the past, and that Ms. D.W. had used a “gay slur” towards him during the incident on April 5. He also said his mother had a ritual performed on him involving candles, coconut, eggs, coffee and other items to rid him of being gay.
In court, Ms. D.W. acknowledged that she did “not believe in homosexuality,” that the Bible “told her that,” and that “god created male and female.” When asked whether she ever used a “gay slur,” Ms. D.W. responded that she regularly used the term “anti-man.” She said this is a common term in her community, that she did not mean to use it in a derogatory way, and that she never used it towards Isaiah. On cross-examination by the AFC, however, she admitted that “the term comes up often,” like when they saw things on social media or television, or even in conversations with her own mother. In addition, Ms. D.W. was evasive and inconsistent in her testimony about the role of Isaiah’s sexuality in the family dynamic.
At one point, she said she had no idea about his sexuality before April 5, 2023, but throughout her testimony she described her ongoing concerns about his school recruiting him into a “gay cult.” Upon questioning from the AFC, she testified that she “was not worried that Isaiah might be gay,” but she was worried that the gay cult might turn him into being gay. Then, she said that if she had felt that Isaiah had been taking on any gay “traits,” she would have wanted to correct that by talking to him and taking him to a church member.
Immediately after saying this, however, she said that she did, in fact, take these actions prior to the April 5 incident. She denied performing any “ritual” on Isaiah, stating that she is a Christian, but then she rambled on about if she had done “powerful” voodoo, she would not be in court and would be back on her job, “doing what I like.” Finally on this topic, she said she “knew” where Isaiah was “getting that from,” but she did not elaborate.
Parents are free to choose their own values, beliefs, and religious principles, and they are free to raise their children within those parameters, even if it creates tension or unhappiness. But this does not excuse conduct that rises to the level of neglect. In Matter of Ibraheem K. (Jacqueline N.), 190 AD3d 643 (1st Dept. 2021), the First Department upheld a finding of neglect where the parent threatened to send the child to the Middle East due to the child’s sexual orientation, with the implication that the child would be killed for that reason. In Matter of Shane T., 115 Misc 2d 161 (Fam. Ct., Richmond Co., J. Leddy, 8/12/1982), the trial court found that the respondent father neglected the subject child by regularly calling the child a “fag,” “queer,” “girl,” and similar terms. The Judge rejected the parent’s explanation that he was trying to “cure” the child of his “girlie behavior.” I have not found any other cases in New York State Family Court specifically addressing a parent’s beliefs or actions around sexual orientation. Notably, in Ibraheem K., there were also findings that the parent used excessive corporal punishment on the child, which may have factored into the decision, and the Court in Shane T. noted that the child lived in constant physical fear of the respondent.
Returning to the instant matter, I find that the preponderance of the evidence establishes that Ms. D.W. neglected Isaiah by mocking his lifestyle and failing to support him emotionally. Even if her religious beliefs were honestly held and could be considered acceptable parenting, she continued to use anti-gay slurs regularly, including in the presence of the child, and used one directly to him during the April 5 incident.
During this entire time period, Ms. D.W. knew that Isaiah was struggling at school, having behavioral issues at home, and had been hospitalized for mental health problems. Yet she continued to denigrate his sexual orientation, took him to church and coworkers to redirect his thinking, and refused to engage in meaningful and productive ways to understand and work with him.
Her proclaimed supportiveness of him, including even if he were gay, is belied by all of the other evidence in the case. And the detrimental harm to Isaiah is clear from his hospitalization, struggles, and statements in April of 2023, particularly in combination with the parents’ excessive corporal punishment on him and failure to take him back home or making a sufficient plan for his wellbeing.
However, there is insufficient evidence to establish any actions or omissions by Mr. W. with respect to Isaiah’s sexual orientation, and thus ACS has not proven that cause of action against him.
And here’s the factual backstory that sheds light on the finding of physical abuse and the failure to pick up the child at the hospital:
The case was filed before another Judge, and on April 14, 2023, that Judge released Elijah and Malia to the parents with various conditions, but she remanded Isaiah (who was still hospitalized at the time) to the care and custody of ACS. The case was assigned to me in mid-August of 2023. During the pre-trial phase of the case, the parents were very cooperative with ACS and foster care agency supervision with respect to Elijah and Malia, who were doing fine at home. On December 7, 2023, ACS offered the parents an Adjournment in Contemplation of Dismissal (“ACD”) for those two children for a period of four months, which the parents accepted. The ACD for those children successfully expired on April 6, 2024, and thus that part of the case was dismissed.
In contrast, Isaiah remained in foster care and has not wanted contact with his parents. Likewise, the parents did not want him back in their care unless they felt he got the help he needed to ensure that there would be no violence in the home….
CPS [Child Protective Specialist] Lyn was assigned to investigate the case, and on April 12, 2023, she spoke to Isaiah at Brookdale Hospital. On direct examination, she testified that Isaiah told her the following: on April 5, 2023, he came home later than his curfew, and he and his mother started arguing. The argument became physical, and Ms. D.W. dragged Isaiah off his bed. Mr. W. intervened and began punching and kicking Isaiah, and then Isaiah fled to the living room. Next, his mother pinned him to the ground, his father choked him while he was on the floor, and at some point, Ms. D.W. threw a scooter at the child, hitting his leg. Isaiah also stated that at some point during the incident, Ms. D.W. called her own mother on the phone.
In response to questioning by other counsel, CPS Lyn provided additional details described by Isaiah. Isaiah stated that he broke his curfew because he was at a park making TikTok videos. When he got home, his mother asked where he was and lectured him about the world being dangerous. Isaiah told his mother to “shut the fuck up,” and his father asked why he was speaking to his mother that way. Isaiah then said that he punched at his father, and at some point, he pulled his mother’s braids and told her she would lose her job for beating him up. Ultimately, his mother called 911, and he was taken to the hospital.
CPS Lyn observed injuries to Isaiah, and she took the pictures that are Pet’s 1-3. These pictures show a small mark to Isaiah’s shin and scrapes to his forearm. Isaiah attributed these injuries to the April 5 incident, including that the mark to his leg was from being hit by the scooter.
CPS Lyn then testified that Isaiah went on to describe that the dynamic in the home had been deteriorating since he identified himself as gay. He said that his parents do not support that type of lifestyle: they had locked him out of the home in the past, and Ms. D.W. brought a “spiritual woman” to come to their home to perform a “ritual” that involved blowing smoke in Isaiah’s face, throwing eggs, and cursing at him. Isaiah said that he wished his parents would not be so strict with his curfew, and he had spoken to them about it. In fact, they had moved his curfew back — to 5:00pm — but Isaiah still wanted it to be later.
On April 13, 2023, CPS Lyn spoke with both parents. On direct examination, CPS Lyn testified that Ms. D.W. described that Isaiah was regularly breaking his curfew, and she confirmed that an altercation happened between them on April 5, resulting in Isaiah being hospitalized. She said she called her mother in Guyana during that incident. Ms. D.W. complained that Isaiah’s current school is “selecting boys” to be in a gay cult. She acknowledged that the hospital advised the parents that Isaiah was ready to leave the hospital, but she refused to take him home because she felt he needed more time in the hospital.
On questioning by other counsel, CPS Lyn testified to additional statements made by Ms. D.W. The mother said that Isaiah had come home after curfew, and she asked him where he was. Then he cursed at her and pulled her braids, whereupon Mr. W. intervened. Then Isaiah got a push pin or thumb tack and tried to scratch Mr. W. Mr. W. then “contained” Isaiah in the living room while Ms. D.W. called the police. She said that Isaiah’s injuries were from him butting himself against a wall and hitting himself with the scooter. At some point, she called her mother in Guyana to show her what was happening. She denied ever using corporal punishment on her children, describing that she was a mandated reporter of child abuse through her work and would not want to jeopardize her job. Ms. D.W. said that their family does not believe in homosexuality and that she believed “demonic spirits” were taking over her son. She said that she was not ready to have Isaiah come home from the hospital, even though he had been hospitalized for over a week and was deemed safe and ready for discharge. She claimed that she was working on finding a different school or residential treatment program for him.
CPS Lyn testified that Mr. W. also confirmed that the incident took place after Isaiah broke curfew, and he said that Isaiah started it. Mr. W. echoed Ms. D.W.’s statements about Isaiah being in a gay cult.
Also on April 13, CPS Lyn went to the home and interviewed the younger children, Elijah and Malia. Both children appeared healthy and well, and CPS Lyn observed no injuries to either child. Elijah, who was 10 years old at the time, described that the April 5 argument took place, and that Isaiah was pulling Ms. D.W.’s hair and screaming “do you want to fight?” Mr. W. came into the room and pinned Isaiah down while Ms. D.W. called the police. When EMS came, Isaiah was kicking a wall. Elijah said that his parents do not use corporal punishment; rather, they take away the children’s tablets or television time. Elijah said he likes his family but does not like it when Isaiah misbehaves and causes problems.
Malia, nine years old at the time, said she was asleep but awoke to noise in the home. When she came out of her room, she saw Isaiah on the floor trying to grab their mother’s hair. An ambulance came and took Isaiah away, and Malia was mad at Isaiah for fighting with their mother. She, too, denied any corporal punishment in the home, and she felt safe with her parents….
The records describe that Isaiah was brought to the hospital by EMS on April 5, 2023. He had dried blood on his face, and he was calm. In RM’s A, a medical note from April 5, Isaiah described that he had a history of mental health issues. “The patient described” hitting his head and having scratches on him, he said he would kill his whole family, and he made suicidal statements as well. The record notes that Isaiah had been seen in the emergency room “several times” for similar issues. In that note, Ms. D.W. said that Isaiah struck her multiple times with closed fists and that Mr. W. restrained him. The parents said that the incident started with the child acting out, banging his head on a wall, using a pin to prick himself, and threatening to shoot them. They described a prior incident where Isaiah grabbed a knife and threatened them, and they said they had difficulty handling his behavior. At some point, the hospital held a “family meeting,” and Ms. D.W. said they were overwhelmed by Isaiah’s behavior and threats. She said she had reached out the Board of Education for help but that they did not take her seriously.
In different notes from April 6, the hospital described various statements by Isaiah. In one note, Isaiah said he came home late, his parents questioned him about it, the argument escalated, and his parents and his siblings started to beat him up. In another note, the hospital documented injuries to his forehead and cheeks, and Isaiah said his mother hit him with a phone, that the argument escalated, he hit his father with a calendar, and a fight ensued. Isaiah told them that he threatened to slap his mother. In a note from April 8, Isaiah said he was doing okay and wanted to go home. He reiterated that the incident began with an argument about his curfew, and he said he got upset because his mother was hitting him. He hit her back and called her names, and he said that she called him a gay slur during the fight.
The notes document that Isaiah has a history of adjustment disorder, disturbance of conduct, and ADHD. Isaiah said that prescribed medication had helped him in the past, but he stopped taking it in January because of issues with the family’s insurance coverage. He said that therapy helps, including family therapy, but that it was not resulting in changes in the family’s relationships. He acknowledged that there is less conflict in the family when he follows his curfew and takes his medication. He said he was suspended from school in March for fighting. Isaiah said that his family wants him not to be gay, and his mother performed a ritual on him with candles, coconuts, eggs, coffee, and other items. He said he wants to be with his family, but he wants them to ask better questions, support him, and think more about how to do so. Finally, he agreed to change his own behavior to reduce conflict in the home.
On April 6, Ms. D.W. told hospital staff that Isaiah’s behavior had been deteriorating since September of 2022. She said he stole a laptop, lied to family, has outbursts, threatened to get a gun and kill everyone, bangs his head against the wall, scratches his face with a pen, and has been threatening towards his parents with knives. She acknowledged that his medication had been effective and helped the situation, but she had insurance issues which resulted in Isaiah not being able to stay on the medication. On April 12, the hospital informed Ms. D.W. that Isaiah had made progress and was ready for discharge, but she said she wanted him to be in a residential treatment facility. She said that, among other things, she was concerned about the safety of her other children. On April 13, she again refused to take him home….
