2012 Conference Executive Record Report.pdf - YMCA of Greater ...

Attorney General Judicial Review Con Law Case 1 2012
Atrion Raimundi, Appellant
v.
Child Protective Services and Mike Couzens, individually, Respondent
Supreme Court Appellate Division, Third Department
New York
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Facts of the Case:
In 2011, the New York State Assembly Freedom passed a bill criminalizing smoking cigarettes and driving
while a minor (defined as under the age of 18) is in the vehicle. The penalties for breaking the law include fines,
mandatory counseling, and referral to Child Protective Services (CPS) for investigation. If the case is referred to
Child Protective Services, the case worker may remove a child from the home of a smoker if they find it is in the
best interest of the child.
On February 26, 2011, Atrion Raimundi and his son, Joe (age 2), were on their way to Saratoga Springs,
NY for a wedding. They were running late so Atrion was speeding. Just after passing through Albany, Atrion was
seen by State Police Officer, Molly Warren, who pulled Atrion over.
Molly went up to the drivers-side window and asked Atrion to roll it down. Immediately, a cloud of
cigarette smoke wafted out Atrion’s window. It was hard to see into the car because of all the smoke, but Molly
thinks she saw cigarette butts in the ash try of the car. It wasn’t until she heard Joe cry that she realized there was a
child in the backseat of the car. Molly immediately became concerned for Joe’s safety due to all the second-hand
smoke he was inhaling.
Molly asked Atrion if he was smoking. He denied it saying “I’ve been driving too fast for the last two
hours and the smoke is from my car overheating. We were just putting up with the smoke in order to get to Saratoga
National on time for my friend’s wedding.” Molly did not believe Atrion. She wrote him two tickets one for
speeding and one for smoking within 10 feet of a minor.
Due to Molly’s concern for Joe, Molly called local CPS right after she finished writing the tickets for
Atrion. She reported her concerns about the second-hand smoke to which Joe was being exposed and mentioned
they were on their way to a wedding at Saratoga National. That same day, CPS selected Case Worker Mike
Couzens to investigate.
Mike was trained on how to spot signed of physical abuse, including aggressiveness and indifference
towards children. The CPS Policy and Training Manual allowed case workers to make immediate decisions to
remove a child from a potentially abusive situation. It was policy to remove a child temporarily if the parent is
caught smoking in the car with a minor (in violation of state law) in addition to one other indicator of potential
abuse. However, it warned that smoking in the presence of minors was not enough by itself to remove a child from
the parents on an emergency basis.
Mike decided not to waste any time and headed over to Saratoga National. Molly met him there to help
“just in case.” When Mike arrived, he saw a male, matching Atrion’s description, standing outside the building
smoking a cigarette. A toddler sat next to him in the snow by a bush—crying and screaming at his father. Atrion
appeared indifferent to Joe’s tears. When Atrion finished smoking, he grabbed Joe’s hand forcefully led him into
the building. Joe cried louder and resisted going into the building with his father, Atrion. Molly then went over to
Mike and told him the story of the traffic stop. She ended by commenting, “It’s because of parents like Atrion that
innocent children get cancer and asthma.”
After watching Atrion and speaking to Molly, Mike decided to temporarily remove Joe from Atrion’s care
to check for physical abuse and for side-effects to his second-hand smoke inhalation. At 5pm, Molly found Atrion
and asked him to accompany him outside, while Mike went inside to find Joe. Mike and Molly brought Joe to
Saratoga Hospital.
Atrion was told where Joe was taken, but not allowed to see his son at any point while Joe was at Saratoga
Hospital. It took several hours of waiting in the Emergency Department for Joe to be seen by a doctor. They ran a
barrage of tests. No bruises or any other signs of physical abuse were found. However, there were some abnormal
results in Joe’s breathing tests and the doctors were concerned Joe may be asthmatic. They admitted him for the
night in order to run more tests throughout the night.
After many tests, the doctors determined Joe had Allergic Asthma caused by a unique type of pollen from
the bushes outside Saratoga National. The doctors gave Joe an antihistamine and he immediately started to get
better. Based on the doctor’s findings, he determined Joe was not in risk and returned him to his father at
approximately 5am the following morning.
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