Opinion
2018–05269 Docket Nos. N–2511–16, N–2511–16
02-06-2019
In the MATTER OF KAMRYN C. (Anonymous). Administration for Children's Services, Respondent; v. Pedro M. (Anonymous), Appellant. (Proceeding No. 1) In the Matter of Josiah B.M. (Anonymous). Administration for Children's Services, Respondent; v. Pedro M. (Anonymous), Appellant. (Proceeding No. 2)
Mark Brandys, New York, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Elina Druker of counsel), for respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Amy Hausknecht of counsel), attorney for the children.
Mark Brandys, New York, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Elina Druker of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Amy Hausknecht of counsel), attorney for the children.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the order of fact-finding is affirmed, without costs or disbursements.
On October 7, 2016, the Administration for Children's Services (hereinafter ACS) filed two petitions against the father, alleging that he neglected his seven-month-old son, Josiah B. M., and derivatively neglected Kamryn C., for whom he was legally responsible. The petitions alleged, inter alia, that on October 4, 2016, the father forced his way into the home where the children lived, took Josiah into his arms, and physically attacked both the children's uncle and the children's mother while he held Josiah. The petition further alleged that Josiah sustained injuries during the course of the altercation. Following a hearing, the Family Court issued an order of fact-finding, which, inter alia, found that the father neglected Josiah and derivatively neglected Kamryn. The father appeals.
Pursuant to Family Court Act § 1012(f)(i)(B), a child is neglected when his or her physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, as a result of a parent's failure to exercise a minimum degree of care "in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof."
The statute imposes two requirements for a finding of neglect, which the petitioner in a child protective proceeding has the burden of proving by a preponderance of the evidence (see Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ; Matter of Jaurelious G. [Gwendolyn J.], 148 A.D.3d 807, 808, 48 N.Y.S.3d 746 ; Matter of Justin L. [Sandra L.], 144 A.D.3d 915, 915, 41 N.Y.S.3d 277 ). First, the petitioner must show that a child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired (see Matter ofAfton C. [James C.], 17 N.Y.3d at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ; Matter of Michael G. [Marie S.F.], 152 A.D.3d 590, 590–591, 59 N.Y.S.3d 74 ; Matter of Jaurelious G. [Gwendolyn J.], 148 A.D.3d at 808, 48 N.Y.S.3d 746 ; Matter of Justin L. [Sandra L.], 144 A.D.3d at 915, 41 N.Y.S.3d 277 ). Further, there must be a "causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child's impairment or imminent danger of impairment" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Afton C. [James C.], 17 N.Y.3d at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ).
Second, any impairment must be a consequence of the parent's failure to exercise a minimum degree of parental care (see Matter of Afton C. [James C.], 17 N.Y.3d at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ; Matter of Jaurelious G. [Gwendolyn J.], 148 A.D.3d at 808, 48 N.Y.S.3d 746 ; Matter of Justin L. [Sandra L.], 144 A.D.3d at 915, 41 N.Y.S.3d 277 ). This is an objective test which requires the court to evaluate the parent's behavior and determine if a reasonable and prudent parent would have so acted, or failed to act, under the circumstances (see Matter of Afton C. [James C.], 17 N.Y.3d at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ; Nicholson v. Scoppetta, 3 N.Y.3d at 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "A parent may deviate from this standard by ‘unreasonably inflicting ... a substantial risk’ of harm to the child" ( Matter of Afton C. [James C.], 17 N.Y.3d at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101, quoting Family Ct Act § 1012[f][i][B] ).
The Family Court's determination that the father neglected Josiah is supported by a preponderance of the evidence (see Matter of Khamari S. [Keith S.], 163 A.D.3d 826, 826, 77 N.Y.S.3d 304 ; Matter of Ariella S. [Krystal C.], 89 A.D.3d 1092, 1094, 934 N.Y.S.2d 422 ; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 1027, 926 N.Y.S.2d 119 ; Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566 ). We agree with the court's determination that the evidence established a sufficient causal connection between the father's conduct and the injuries sustained by Josiah (see Matter of Afton C. [James C.], 17 N.Y.3d at 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ; Nicholson v. Scoppetta, 3 N.Y.3d at 369–370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; Matter of Jubilee S. [James S.], 149 A.D.3d 965, 968, 52 N.Y.S.3d 439 ; Matter of Angelique L., 42 A.D.3d 569, 572, 840 N.Y.S.2d 811 ).
Moreover, a preponderance of the evidence supports the Family Court's determination that the father derivatively neglected Kamryn, since the father's conduct during the altercation evinced such a profound lack of understanding of his parental responsibilities as to create a substantial risk of harm for any child in his care, even though there is no evidence that Kamryn was present during the incident (see Matter of Gary J. [Engerys J.], 154 A.D.3d 939, 942, 62 N.Y.S.3d 499 ; Matter of Kaleb B. [Harold S.], 119 A.D.3d 780, 781, 989 N.Y.S.2d 345 ; Matter of Nia J. [Janet Jordan P.], 107 A.D.3d 566, 566–567, 968 N.Y.S.2d 446 ; Matter of Briana F. [Oswaldo F.], 69 A.D.3d 718, 719, 892 N.Y.S.2d 526 ).
BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.