Opinion
07-19-2016
In the Matter of JUBILEE S., Jamee S., James S., Children Under Eighteen Years of Age Alleged to be Neglected by James S. Sr., Respondent.
Corporation Counsel, Michael Cordozo, by Christina Favela, Esq., Special Assistant Corporation Counsel, Esq., Brooklyn, appeared for the Petitioner. Jaclyn Goodman, Esq. Kings County Legal Aid Society–Juvenile Rights Division, Brooklyn, appeared as Attorney for the Child.
Corporation Counsel, Michael Cordozo, by Christina Favela, Esq., Special Assistant Corporation Counsel, Esq., Brooklyn, appeared for the Petitioner.
Jaclyn Goodman, Esq. Kings County Legal Aid Society–Juvenile Rights Division, Brooklyn, appeared as Attorney for the Child.
ANN E. O'SHEA, J. On April 2, 2015, the Administration for Children's Services ("ACS") filed a petition against Respondent James S. Sr. ("Respondent"), alleging that he neglected his children, Jubilee S., Jamee S., and James S., by committing domestic violence against their mother, Ashley B., (the "Mother"), in their presence, and by violating an existing criminal court order of protection. The Respondent was properly served, and jurisdiction was deemed complete on May 26, 2015.
The petition also alleged that the children's mother, Ashley B., neglected the children by permitting Respondent to be in her home despite an order of protection prohibiting him from being there. The proceeding against Ms. B. was adjourned on February 11, 2016 in contemplation of dismissal for six months, with ACS supervision to end on August 10, 2016. This decision applies only to the allegations against Respondent.
On February 1, 2016, ACS moved for summary judgment based on (1) an affidavit of Child Protective Specialist Jasmine Fry; (2) Family Court fact-finding order, entered on October 19, 2011 in NN–1776–78/11 (White, J.), finding that Respondent had "engaged in a continued course of physical and verbal abuse against the ... mother in the presence of the children; (3) a dispositional order entered in the same proceedings on February 1, 2012 (White, J.), requiring Respondent to engage in and complete parenting skills, anger-management, and batterer's accountability programs; (4) a Certificate of Disposition and (4) plea minutes in a Kings County Criminal Court proceeding (2013KN033521) against Respondent in which he pled guilty to contempt and was sentenced to a Conditional Discharge, conditioned on his entering and completing a batterer's intervention program and compliance with a full stay-away order of protection on behalf of the children's mother and two of the children, Jamee and Jubilee; and (5) a final, five-year, full stay-away order of protection against Respondent on behalf of Jamee, Jubilee, and their mother. The motion was denied by this Court's decision and order dated March 7, 2016, on the grounds that ACS failed to provide any evidence to corroborate a statement allegedly made by then four-and-a-half-year-old Jubilee that Respondent hit her mother all over her body. The Court further held that ACS failed to provide competent evidence that Respondent neglected the children by failing to complete the tasks required of him in the February 1, 2012 order of disposition.
ACS presented the same evidence at inquest, except that CPS Frye testified in person, and four Oral Report Transmittals ("ORTs") were admitted into evidence as business records, but the narrative portions of those ORTs were excluded as inadmissible hearsay not subject to any exception (see Matter of Imani O. (Marcus O.), 91 A.D.3d 466, 937 N.Y.S.2d 162 [2d Dept.2012] ; Matter of Christy C. [Jeffrey C.], 74 A.D.3d 561, 562, 903 N.Y.S.2d 365 [1st Dept.2010] ); Matter of Imani B., 27 A.D.3d 645, 811 N.Y.S.2d 447 [2d Dept.2006].
One from 2010; one from 2012; one from 2013; and one from 2015.
As the Court stated in its decision denying ACS's summary judgment motion, to establish neglect pursuant to FCA § 1012(f)(I)(B) of the Family Court Act, the petitioner must prove, by a preponderance of the competent, material, and relevant evidence ( FCA § 1046[b][i] and [iii] ), that (1) the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship ( FCA § 1012(f) ; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; Matter of Kiara C. and David C., 85 A.D.3d 1025, 1025–1026, 926 N.Y.S.2d 566 [2d Dept.2011] ). " Imminent danger" means "near or impending" danger, not merely possible ( Nicholson, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). Whether actual or threatened, the harm must be "serious ... not just ... what might be deemed undesirable parental behavior" (id. ). These evidentiary standards must be met even upon inquest ( In the Matter of MHP and MP, 45 Misc.3d 1224 [A], 2014 WL 6843275 [Fam.Ct., Kings County 2014] ; In the Matter of M/B Child, 8 Misc.3d 1001(A), 2005 WL 1388846 [Fam.Ct., Kings County 2005] ; see also In re Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985] ; Matter of Amber C., 38 A.D.3d 538, 540, 831 N.Y.S.2d 478 [2d Dept.2007] ; In re Cassandra M., 260 A.D.2d 961, 689 N.Y.S.2d 279 [3d Dept.1999] ).
Domestic violence in the presence of a child may be a permissible basis upon which to make a finding of neglect (see, e.g., Kiara C, 85 A.D.3d at 1026, 926 N.Y.S.2d 566 ). However, exposing a child to acts of domestic violence "is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment" ( Nicholson, 3 N.Y.3d at 375, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). Proof that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired as a result of witnessing the domestic violence is required to support a finding of neglect (see Matter of Elijah J., 77 A.D.3d 835, 909 N.Y.S.2d 375 [2d Dept.2010] ; Matter of Briana F., 69 A.D.3d 718, 892 N.Y.S.2d 526 [2d Dept.2010] ; Matter of Jordan E., 57 A.D.3d 539, 869 N.Y.S.2d 162 [2d Dept.2008] ; Matter of Andrew Y., 44 A.D.3d 1063, 844 N.Y.S.2d 408 [2d Dept.2007] ; Matter of Jayda D.-B., 33 A.D.3d 998, 822 N.Y.S.2d 723 [2d Dept.2006] ).
The allegations of domestic violence in the presence of the children are based solely on Jubilee's statement to CPS Frye that her father hits her mother all over her body. A child's out-of-court statements may form the basis for a finding of neglect if they are sufficiently corroborated by other evidence tending to support their reliability (see FCA § 1046[a][vi] ; Matter of Kassandra V. (Sylvia L.), 90 A.D.3d 940, 935 N.Y.S.2d 607 [2d Dept.2011] ). Petitioner presented no testimonial or documentary evidence corroborating Jubilee's statement.
ACS argues CPS Frye's testimony that Respondent was in the Mother's home on March 12, 2015, in violation of the Criminal Court order of protection plus the family's "history" of domestic violence, are enough to corroborate Jubilee's statement. The evidence that Respondent was present in the home on March 13, 2015, in violation of an existing order of protection does not corroborate Jubiliee's statement that there is domestic violence in the home, nor does it, standing alone, establish neglect (see Matter of Abbygail H.M.G. (Christine Y.), 129 A.D.3d 722, 10 N.Y.S.3d 326 [2d Dept.2015] ).
The "history" to which ACS refers are the 2011 Family Court proceeding and the 2013 Criminal Court proceeding. Those proceedings are, respectively, five and three years old. Putting aside the age of those proceedings, which diminishes the evidentiary weight they should be afforded, ACS has provided no legal authority for the proposition that "history" of prior conduct can serve as corroboration of current conduct. Just stating the proposition suggests its weakness.
Even if the Court was to accept ACS's argument that domestic violence history could corroborate a child's out-of-court statement, there was no evidence that the physical, mental, or emotional condition of any of the children was harmed or placed in imminent risk of harm as a result of any altercations between their parents.
There was no evidence that any child was physically harmed or in imminent danger of being physically harmed during any altercation between the parents (cf., In the Matter of Ariella S., 89 A.D.3d 1092, 934 N.Y.S.2d 422 [2d Dept.2011] (child three feet away from altercation between mother and father when mother stabbed father); In the Matter of Joseph RR., 86 A.D.3d 723, 927 N.Y.S.2d 428 [3d Dept.2011] ) (respondent brandishing a gun in the presence of the child).
Unlike physical injury, which can be observed or established by medical records, whether a child's mental or emotional condition has been impaired or placed at risk of impairment "may be murky" ( Nicholson, 3 N.Y.3d at 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). The fact that a child has witnessed domestic violence, however abhorrent as that might be, is not sufficient to establish that the child's mental or emotional condition has been actually impaired or placed in imminent risk of impairment (id. ). "Impairment of mental or emotional condition," is specifically defined to include
"a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the inability of the respondent to exercise a minimum
degree of care toward the child."
( FCA § 1012(f) ); see Nicholson, 3 N.Y.3d at 369–70, 787 N.Y.S.2d 196, 820 N.E.2d 840.
The fact that Jubilee allegedly reported that she and the other children were "scared" and ran to the bedroom when fights between the parents broke out does not support a finding of "substantially diminished psychological or intellectual functioning" as described in the statute. Something more substantial is required (see, e.g., In re Lonell J., 242 A.D.2d 58, 673 N.Y.S.2d 116 [1st Dept.1998] [repeated vomiting, soiled bedding, poor health, eating problems]; In re Theresa "CC", 178 A.D.2d 687, 576 N.Y.S.2d 937 [3d Dept.1991] [behavioral problems, anxiety, bed-wetting, rebellion, withdrawal]; but see Matter of Madison M. (Nathan M.), 123 A.D.3d 616, 999 N.Y.S.2d 70 [1st Dept.2014] ) (police observations that the children were crying sufficient).
Although the Court may and does draw the strongest inference that the evidence permits against the Respondent for his failure to appear and testify, particularly with respect to matters he would be in a position to refute ( Nassau County Dept. of Social Servs. ex rel. Dante M. v. Denise J., 87 N.Y.2d 73, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ), it was ACS's burden to prove the elements of neglect, including harm or imminent risk of harm to the children. "The strongest negative inference cannot provide a missing element of proof." ( Tysean P. v. Richard S., 39 Misc.3d 1232(A), 2013 WL 2278499 [Fam.Ct., Kings County 2010] ).
ACS also failed to provide competent evidence that the Respondent neglected the children by failing to complete the tasks required of him in the order of disposition dated February 1, 2012 (see e.g., Matter of Jamie R., 61 A.D.3d 876, 876 N.Y.S.2d 883 [2d Dept.2009] ) (see Decision and Order denying ACS's summary judgment motion).
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As ACS failed to provide competent evidence to corroborate Jubilee's hearsay statement or to prove that any of the children suffered any actual harm to their physical, mental, or emotional condition or that they were placed in imminent risk of suffering any such harm, the petition must be dismissed. This is the decision and order of the Court.