Opinion
NN-14999-14
06-05-2015
In the Matter of K.I., a Child Under Eighteen Years of Age Alleged to be Neglected by v. K.M., Respondent.
Seth Myles, Esq., attorney for the Respondent Mother, 26 Court Street, # 2503, Brooklyn, NY 11201; (917) 686-0979 Phillip Devereaux, Esq., attorney for the Non-Respondent Father 277 Broadway, Suite 400, New York, NY 10007; (212) 227-7140 Genevieve Cahill, Esq., attorney for the Child, Juvenile Rights Practice, 111 Livingston St. 8th Floor, Brooklyn, NY 11201; (718) 250-4282.
Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Joshue Dorleus, Esq., 330 Jay Street, Brooklyn, NY 11201, telephone (718) 802-2904.
Seth Myles, Esq., attorney for the Respondent Mother, 26 Court Street, # 2503, Brooklyn, NY 11201; (917) 686-0979
Phillip Devereaux, Esq., attorney for the Non-Respondent Father 277 Broadway, Suite 400, New York, NY 10007; (212) 227-7140
Genevieve Cahill, Esq., attorney for the Child, Juvenile Rights Practice, 111 Livingston St. 8th Floor, Brooklyn, NY 11201; (718) 250-4282.
Ann E. O'Shea, J.
Petitioner, the Administration for Children=s services (APetitioner@ or AACS@) commenced this proceeding seeking a determination that Respondent K. M. (ARespondent@ or Athe Mother@) neglected her newborn son K .I. (the AChild@ or AK.I.@). A fact-finding hearing was scheduled for April 28, 2015. The Mother did not appear and no excuse was provided for her appearance, so the matter proceeded on inquest. Petitioner=s evidence consists of the testimony of ACS Child Protective Specialist (ACPS@) Annise Kelly; fact-finding and dispositional orders entered in prior neglect proceedings (NN-4570-10 and NN-16692-11) regarding K.I.=s older siblings R. L. and S. B.; fact-finding and dispositional orders terminating the Mother=s rights with respect to R. L and S. B (B-21715/11 and B-20963/12); certified and delegated excerpts of records of Jamaica Hospital Medical Center (AJamaica@) regarding the Mother=s mental-health assessment and treatment on August 12, 2011, and August 15, 2011; and certified and delegated excerpts of the records of Brookdale University Hospital and Medical Center (ABrookdale@) for K. I. from the date of his birth on May 30, 2014 through the date of his discharge on July 22, 2014.
The Petition
The petition alleges that K. I. is a derivatively neglected child under FCA '1046(a)(i) based upon findings entered in R. L.=s and S. B=s prior neglect and termination of parental-rights proceedings; because the Mother failed to engage in and benefit from services ordered in the prior neglect proceedings; because the Mother tested positive for marijuana on the day K. I. was born; because the Mother was diagnosed with depression and Mood Disorder when she was 16 and discontinued mental-health treatment; and because she failed to plan for K. I. or provide him with basic food, clothing, and shelter.
Paragraph 1(b) of the petition alleges that Athe prior findings were based on the . . . mothers [sic] failure to comply with dispositional orders . . . under docket number NN-16692-11.@ It is unclear to what Adispositional orders@ this allegation pertains. A finding in the 2011 case could not be based on a failure to comply with a dispositional order entered in the same case, and a finding in the 2010 case could not be based on a failure to comply with a dispositional order in a subsequently filed case. No allegation or evidence was presented that any neglect proceedings were filed against the Mother prior to 2010. Further, as discussed, infra, the fact-finding orders in the R. L. and S. B. proceedings do not specify any failure to comply with prior dispositional orders B or any other inappropriate or wrongful conduct.
ANeglected Child@
FCA '1012(f) defines a Aneglected child@ in pertinent part as
Aa child less than eighteen years of age
A(I) 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 . . . to exercise a minimum degree of care
(A) in supplying the child with adequate food, clothing, shelter or education . . . or medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so; or (B) in providing the child with proper supervision or guardianship, . . . by [ inter alia] misusing a drug or drugs. . . or by any other acts of a similarly serious nature requiring the aid of the court . . .; or
(ii) who has been abandoned, in accordance with the definition and other criteria set forth in [SSL '384-b(5)] by his parents or other person legally responsible for his care.@
In a child protective proceeding brought pursuant to Article 10 of the Family Court Act, a finding that a child is abused or neglected must be supported by a preponderance of the competent, material, and relevant evidence (FCA 1046[b][I] and [iii]). These evidentiary standards must be met even upon inquest (In the Matter of MHP and MP, 45 Misc 3d 1224A(Fam. Ct. Kings Co. 2014]; In the Matter of M/B Child, 8 Misc 3d 1001(A) [Fam. Ct., Kings Co. 2005]; see also In re Tammie Z., 66 NY2d 1, 3 [1985]; Matter of Amber C., 38 AD3d 538, 540 [2d Dept. 2007]; In re Cassandra M., 260 AD2d 961 [3d Dept. 1999]).
To sustain a finding of neglect under Article 10 of the Family Court Act, there must proof Afirst, that a child=s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care....@ (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). In order for danger to be "imminent," it must be Anear or impending, not merely possible@ (id. at 369). Further, Athere must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child=s impairment or imminent danger of impairment@ ( id.; see also Matter of Afton C., 17 NY3d 1 [2011]). The Derivative Allegations
Petitioner seeks a derivative finding that the Mother neglected the newborn child K. I. based upon findings that were entered with respect to K. I.=s siblings R. L. and S. B. in prior Article 10 neglect proceedings and in proceedings to terminate the Mother=s parental rights to those children.Section 1046 [a][i] of the Family Ct Act provides that A[i]n any hearing under this article . . . proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent@ (see Matter of Amber C., supra, 38 AD3d at 540). However, a finding of abuse or neglect as to one sibling does not mandate a finding of Aderivative@ abuse or neglect as to the other siblings (see Matter of Jeremiah I.W. [Roger H.W.], 115 AD3d 967, 969 [2d Dept. 2014). A[T]he focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood . . . or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [respondents=] care . . . @ (Matter of Harmony M.E. (Andre C.), 121 AD3d 677, 679 [2d Dept 2014](internal citations omitted); see also In re Dutchess County Dept of Social Services, ex rel. Brittney C., 242 AD2d 533, 534 [2d Dept. 1997]; see, generally, Sobie, Merril, Practice Commentaries, 29A McKinney=s Consolidated Laws of NY '1046 [2010]), and whether Athe conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists@ (Matter of Cruz, 121 AD2d 901, 902-903 [2d Dept. 1986]; see also Matter of Elijah O. , 83 AD3d 1076, 1077 [2d Dept. 2011]). In such a case, the neglectful or abusive conduct or condition is presumed to continue, and the respondent has the burden of proving that it cannot reasonably be expected to exist currently or in the foreseeable future (Matter of Jamarra S. v Jessica S., 85 AD3d 803 [2d Dept 2011]). 1. R. L.=s and S. B.=s Prior Neglect Proceedings.
Proximity is a relative matter (see, e.g., In re Evelyn B., 30 AD3d 913 [3d Dept.], lv to appeal denied, 7 NY3d 713 [2006] (AThere is no bright line, temporal rule beyond which a court will not consider older child-protective determinations@ ), and has been tied to the nature, seriousness, and frequency of the conduct on which the initial finding was based: the more egregious the initial conduct, the less proximate the derivative action must be to sustain a finding (compare Elijah O., 83 AD3d 1076 [2d Dept 2011] (derivative finding as to child born three years after the act of abuse committed against an older child reversed as not sufficiently proximate) with Matter of Harmony M.E. (Andre C.), 121 AD3d 677, 680-81 [2d Dept. 2014] (derivative finding of abuse of child born 10 years after Father was convicted of smothering one child and 20 years after he was convicted of attempting to strangle another upheld).
In each of the prior neglect cases involving R. L. and S. B., the Mother consented, without admission of wrongdoing, to entry of a finding of neglect under FCA '1051(a). No evidence was adduced as to the nature of the Mother=s alleged misconduct, and the fact-finding orders entered in those proceedings make no specific findings as to any neglectful conduct by or condition of the Mother. The finding in each case is solely that Athe child is a neglected child, as defined in section 1012 of the Family Court Act by Keairra Mitchell.@ Indeed, no evidence as to what the allegations were in the prior proceedings was presented to this Court. Even if the allegations were known, there is no evidence that the Mother=s consents in the prior proceedings were to anything more than the generic finding of neglect that is stated in the fact-finding orders.
The allegation in the present petition that A[a] finding of neglect was also entered under docket number NN-04570-10 based on the respondent mother leaving the child R. L. with inappropriate caretakers, and by failing to plan for the child by not visiting the child . . . is not supported by the Fact Finding order entered in that case or by any other evidence presented to this Court.
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To establish derivative neglect, there must, as an initial matter, be a finding of some wrongful conduct, which continues or is presumed to continue and which presents a risk of harm to the child who is alleged to be derivatively neglected. In the present proceeding, there is no evidence of any wrongful conduct by the Mother with respect to K. I.=s siblings and thus nothing upon which the Court could base a derivative finding.
The allegations of derivative neglect based upon the findings in the prior neglect proceedings involving R. L. and S. B. must, therefore, be dismissed. 2. R. L.=s and S. B.=s Termination Proceedings.
The present petition also alleges that the Mother fails to provide K. I. Awith proper supervision or guardianship, in that . . . [t]he child S. B. is currently freed for adoption under docket numbers B-20963-12/AS-3642-13 and the child R. L. is freed for adoption under docket number B-21715-11.@ An order dated May 10, 2012, terminating the Mother=s parental rights to R. L. on the grounds of abandonment under SSL '384-b[4](b) and an order dated March 8, 2013, terminating the Mother=s rights to S. B. on the grounds of permanent neglect under SSL '384-b[4](d) were submitted as evidence in support of these allegations.
The termination of a parent=s rights to one child based upon Aabandonment@ under SSL '384-b[4](b) or Apermanent neglect@ under SSL '384-b[4] does not constitute evidence of direct or derivative neglect of another child (see, e.g. In re TC, 128 Misc 2d 156, 161 [Fam. Ct. NY Co. 1985]). As discussed above, a derivative finding of neglect is premised on a respondent=s commission of harmful conduct against one child accompanied by a risk that the respondent might similarly harm other children in her care. AAbandonment,@ one of the four grounds for termination of a parent=s rights under the Social Services Law, is defined by SSL' 384-b[5](a) in substantial part as Aa failure to visit the child and communicate with the child or agency@ for six months. APermanent neglect,@ another ground for terminating parental rights, is defined by SSL '384-b[7](a) in substance as a failure to maintain contact with or plan for the future of a child. Both Aabandonment@ and Aneglect@ in the context of a termination of parental rights proceeding and as defined by the Social Services Law entail failures to act, an absence of beneficial conduct with respect to a specific child, which by its nature, cannot pose a risk of harm to a different child.
The derivative allegations based upon the prior termination orders regarding R. L. and S. B. must, therefore, also be dismissed.
The Mother=s Alleged Failure to Engage In or Benefit From Services
The petition alleges that the Mother failed to engage in or benefit from services ordered in the R. L. and S. B. proceedings so as to ameliorate the risk to K. I.
A finding of neglect may be made based on evidence that a respondent failed to comply with mandated services and remedy the conditions that led to a prior neglect finding or to the child being placed in foster care (see, e.g. Matter of Neveah AA, 124 AD3d 938, 939 [3d Dept. 2015] [father, previously found to have neglected his children by engaging in domestic violence in their presence, was found to have neglected those children again by failing to complete anger- management and batterer's accountability programs; and mother, previously found to have neglected her child by banging him against a wall, was found to have neglected him again by failing to complete parenting and anger-management programs or comply with recommended mental health treatment]; In re Tradale CC, 52 AD3d 900, 902 [3d Dept 2008] [summary judgment upheld based upon unrefuted evidence that respondent repeatedly failed to comply with numerous orders to engage in alcohol abuse treatment or to obtain mental health counseling, and that the problems that brought her children into foster care continued]).
However, in this case, as previously discussed, no wrongful conduct that needed correcting was identified in the fact-finding orders entered in the prior neglect proceedings. Additionally, although the dispositional orders entered in R. L.=s and S. B.=s neglect proceedings listed various actions the mother was to take and services she was to engage in, no evidence was presented in the present proceeding that the Mother was offered but failed to comply with corrective services. Thus, there is no basis for the Court to make a finding of neglect based upon a failure to comply with such services, and the allegation of neglect based on a failure to engage in or benefit from mandated services must be dismissed. The Allegations Regarding the Mother=s Mental Health
The petition alleges that Aon or about May 30, 2014,@ when she was 21 years old, Arespondent mother told [child protective specialist Annise Kelly] that she was diagnosed with having Depression when she was 16 years old@ and that Ashe stopped going to treatment approximately 2 years ago because she did not feel she needed it anymore.@ Ms. Kelly confirmed in her testimony at the fact-finding inquest that the Mother disclosed those matters to her.Certified and delegated records from Jamaica Hospital Medical Center for the Mother from August 2011 were admitted into evidence.
Proof that a parent suffers from a mental illness B even if untreated B standing alone, is not enough to sustain a finding of neglect; Petitioner must also plead and prove some causal connection between the parent's untreated mental illness and actual or potential harm to the child (see In re Cyraia B. (Anonymous), 96 AD3d 936 [2d Dept 2012]; Matter of Matter of Joseph A. v Fausat O., 2012 NY Slip Op 204 [2d Dept 2012]). The Mother=s Jamaica Hospital records, are from 2011, three years before the current petition was filed and two weeks after S. B. was born. The 2011 diagnostic Aimpression@ was AAdjustment d/o depressed mood,@ with a primary symptom of Adysphoric [sad] mood.@ Petitioner provided no evidence of a current diagnosis or evidence that the Mother=s prior diagnosis B even if it continued B actually harmed or created a risk of imminent harm to K. I. The allegations regarding the Mother=s mental illness must, therefore, be dismissed. Misuse of Marijuana Allegations
The petition alleges that Athe respondent mother tested positive for Marijuana after giving birth to the subject child.@ The Child=s neonatal medical records from Brookdale Hospital Center establish that K. I. was born prematurely, at 28 weeks gestation, and that he experienced respiratory distress and multiple other complications. The records also report that the Mother tested positive for cannabinoid. In addition, CPS Kelly testified that the Mother acknowledged that she smoked marijuana about two weeks before giving birth to K. I.
In the absence of evidence that the Mother "repeatedly [misused] a drug or drugs . . . to the extent that it has or would ordinarily have the effect of producing . . . a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality" (FCA '1046[a][iii]), which constitutes prima facie evidence of neglect without the need to prove harm (id.); see also, Matter of Anastasia G. v. Michael G., 52 AD3d 830, 832 [2d Dept. 2008]), Petitioner was required to prove that the Mother=s use of marijuana impaired the Child=s physical, mental, or emotional condition or placed him in imminent danger of such impairment (id.; see also Nassau County DSS ex rel. Dante M. v Denise J., 87 NY2d 73, 79 [1995] (a newborn=s positive toxicology for cocaine is insufficient to establish neglect).Petitioner provided no evidence that the Mother=s use of marijuana caused K. I.=s premature birth or any of his neonatal complications or that it otherwise impaired or created an imminent risk of impairment to his physical, mental, or emotional condition. Nor did Petitioner provide any evidence that the Mother repeatedly misused drugs to the point that she lost control of her actions. Therefore, the allegation regarding the Mother=s use of marijuana must be dismissed. The Mother=s Alleged Failure to Plan or Provide for the Child
The petition alleges that K. I. was born prematurely on May 30, 2014, that the Mother left the hospital three days later on June 2, 2014, and did not return to visit the child or discuss a discharge plan; and that she failed to respond to the hospital=s attempts to contact her. CPS Kelly testified that the Mother told her that she was homeless and that she had no provisions for the Child. As far as the evidence shows, the Mother has made no attempt to provide for this child in any way since his birth. Based on the evidence, and taking the strongest possible inference against the Mother for her failure to appear and testify with respect to matters that she would be in a position to refute, the Court finds that Petitioner established by a preponderance of the evidence that the Mother failed to exercise a minimum degree of care in supplying K. I. with adequate food, clothing, or shelter or medical care, and, as a result, the Child is a Aneglected child@ as that term is defined in FCA '1012(f)(i)(A).
This is the decision of the Court. The Clerk is requested to enter an order in accordance with this decision.
Dated: June 5, 2015__________________________________
Ann E. O=Shea, AJSC