Opinion
xx10.
Decided June 23, 2010.
Christopher Keating, Esq., Special Assistant Corporation Counsel, New York City Children's Services, Brooklyn, New York.
Patrick Garcia, Esq., For respondent mother, New York, New York, Joan James, Esq., For respondent father, Brooklyn, New York.
Brian Zimmerman, Esq., Attorney for the Child Alyssa, Brooklyn, New York.
Jill Wade, Esq., Attorney for the Children, Melanie and Madelina, Legal Aid Society, Juvenile Rights Project, Brooklyn, New York.
Krystal T. is the mother (hereinafter "respondent mother"); James S., Sr. is the father (hereinafter "respondent father") and Arlene Ocasio is the maternal grandmother of the subject children, Melanie S. (date of birth, April 17, 2006) and Madelina S. (date of birth, February 23, 2005). James S., Sr. is also the father of the child Alyssa Ebony S. (date of birth, June 18, 2008). Her mother is not a respondent in this proceeding. Prior to the commencement of this proceeding, Melanie, Madelina and their baby brother, James S., Jr. (date of birth, October 14, 2007), lived with respondent mother, a maternal uncle, a maternal aunt and respondent maternal grandmother at a Women in Need shelter located at 1738 East New York Avenue, Brooklyn, New York.
On January 10, 2008, James S., Jr. died and New York City Children's Services (hereinafter "NYCCS") removed Melanie and Madelina from the care of the respondents without a court order. On January 14, 2008, NYCCS filed neglect petitions against all three respondents. The petitions allege that respondent mother and respondent father neglected the child, James S. Jr. by failing to provide adequate supervision and guardianship. Specifically, the petitions allege that on January 10, 2008, at approximately 1:00 AM, the mother, the father and James, Jr. left the maternal grandmother's home and traveled to 172 Vernon Avenue in Brooklyn. The petitions allege that 172 Vernon Avenue was an abandoned building without heat or electricity. Access to the building was obtained through a window the father broke on a prior occasion. The baby fell asleep in a stroller. The parents fell asleep on a mattress on the floor.
At approximately 5:00 or 6:00 AM the baby started crying. Respondent father woke up and gave him a bottle. Respondent father propped the bottle up with a tee-shirt. He then went back to sleep. He woke up six or seven hours later. He found the baby to be cold and stiff.
Respondent father attempted to revive the baby without success. He then told respondent mother to go to a pay-phone to call 911. She went out but returned without having called 911. Respondent father then went to a pay-phone and called 911. The baby was taken to Woodhull Hospital where he was pronounced dead at 12:45 PM on January 10, 2008.
The petitions also allege that the children were neglected as a result of the failure of respondent mother and respondent maternal grandmother to provide adequate food, clothing and shelter. Specifically, the petitions allege that the children were dirty and not adequately fed and that the home was dirty and infested with roaches and mice. The petitions also allege that garbage bags, dirty dishes and dirty clothing were observed throughout the residence.
Finally, the petitions allege that Melanie and Madelina were derivatively neglected children by virtue of the neglect of James, Jr. On the day the petitions were filed, this Court granted the request of NYCCS for a remand of the two girls.
On August 4, 2008, Alyssa Ebony S. was born to James S., Sr. and Angelica Huertas. On that date, NYCCS filed a derivative petition against respondent father. Alyssa was temporarily released to her non-respondent mother under supervision by NYCCS where she has remained to date.
The Fact-Finding Hearing
A fact-finding hearing was conducted over the course of approximately 15 months beginning on February 9, 2009. On April 12, 2010, NYCCS withdrew the petitions against respondent maternal grandmother after she moved to dismiss the petitions for failure to establish a prima facie case.
At fact-finding, NYCCS called three witnesses. The first witness was the caseworker, Shermaine Taylor, who conducted the initial investigation into the allegations of neglect. Ms. Taylor testified that she initially visited the case address at 1738 East New York Avenue, Brooklyn, New York as a result of an Oral Report Transmission (hereinafter, "ORT") called in by a staff member at the shelter. Ms. Taylor testified that she visited the case address on October 18, 2007, October 24, 2007 and November 2, 2007. She testified that various family members were present when she visited. She indicated, however, that the maternal grandmother was rarely present since she was generally at work. She testified that it was in a deplorable condition, infested with roaches and vermin. She testified that she observed garbage on the floor and dirty clothing everywhere. She testified that although the conditions of the home were improved on October 24, 2007, they subsequently deteriorated. She testified further that James S., Sr. did not live at the case address. She testified that pursuant to shelter rules, he was not even allowed to visit there.
Ms. Taylor also testified that she interviewed respondent mother and respondent father on the day that James, Jr. died. Ms. Taylor testified that respondent father had arrived at respondent mother's residence on the night of January 9, 2008, at about 10:00 PM. Ms. Taylor testified that, after that, the parents spent time together outside the shelter. At approximately 12:30 AM, they picked up the baby and the three of them took the subway to 172 Vernon Avenue using someone else's metro-card. They arrived between 1:00 and 2:00 AM. They entered the building through a window that respondent father broke the prior evening. Ms. Taylor testified that 172 Vernon Avenue was an abandoned building without any heat or electricity. She testified that the parents had slept there on prior occasions. That night, the baby was dressed and wearing a jacket. He was placed in a stroller and wrapped in two comforters. The baby fell asleep in the stroller and the parents went to sleep on a mattress on the floor.
Ms. Taylor testified that respondent father said that the prior night, the baby had been cranky and crying and that he was recovering from a cold. Respondent father told Ms. Taylor that he woke up on the morning of January 10, 2008, at 5:00 or 6:00 AM because the baby was crying. Respondent father said he gave the baby a bottle and that he propped it up with a tee-shirt. Respondent father said that he then went back to sleep. He said that he woke up several hours later and that the baby was blue and making gurgling sounds.
Ms. Taylor testified that respondent mother reported that when she woke up, respondent father was crying and saying that the baby was not responsive. Respondent father told respondent mother to get dressed, go to a pay phone and call 911. She left but returned without having made the call. She said that she had gone to see a friend. Respondent father then went to a corner telephone and called 911. The police arrived with Emergency Medical Services. The baby was taken to Woodhull Hospital where he was pronounced dead.
Natasha Stewart, another NYCCS caseworker, testified about the conditions she observed at the case address. She said that it was in "deplorable condition." She said that the stove was dirty, dishes were in the sink and clothing was everywhere. She observed mice in the residence.
She testified that when she visited the case address, she observed the baby sleeping in the stroller. She testified that she told respondent mother that the baby should not be allowed to sleep in the stroller. She testified about a number of conversations that she had with respondent mother about the need to ensure that the baby slept in a crib. She repeatedly assisted the mother in removing all of the clothing from the baby's crib. She told respondent mother that the baby would be more comfortable in the crib and that the stroller was not a comfortable place for the baby to sleep. Respondent mother stated that the baby did not like to sleep in the crib. Ms. Stewart testified that she had repeatedly warned the mother that the baby should not be left to sleep in the stroller and that allowing a newborn to sleep in that position was dangerous.
The Medical Examiner, Dr. Julia C. de la Garza — Jordan, M.D., testified and was qualified as an expert in forensic pathology. She testified that the cause of the baby's death was "positional asphyxia" due to soft bedding covering the baby's mouth and she concluded that it was an accident. She testified that these conclusions were based on a reasonable degree of medical certainty. She testified that the baby had been placed in the stroller. She testified that he eventually slid down in the stroller and that, as a result, the "baby's airway was covered by the blanket, and the tee-shirt, and the bottle in the stroller and that's how it ends up being positional asphyxia." The Medical Examiner testified that James, Jr., like all babies younger than six months of age, did not have the musculature in the neck necessary to lift his head, hold it up and move his body to get air. The Autopsy Report lists the manner of death as "accident (asleep in stroller with clothing over airway)." The Medical Examiner testified that "an accident means that there was absolutely no intent to cause the death." The Infant Child Death Scene Report listed the ambient room temperature as 60 degrees Fahrenheit and the outside temperature as 55 degrees Fahrenheit.
The Medical Examiner testified that the baby was dirty and had dirty fingernails. She testified that the baby also had areas of thinning hair around the scalp. She testified that this suggested that the baby had been lying down in the same position for extended periods of time, long enough to kill the hair follicles. The Autopsy Report also indicated that marks were observed on the baby's scalp consistent with lice.
The exhibits introduced by NYCCS consisted of the following: an ORT dated October 18, 2007 (Petitioner's Exhibit # 1 in evidence); an ORT dated January 10, 2008 (Petitioner's Exhibit # 2 in evidence); another ORT dated January 10, 2008 (Petitioner's Exhibit # 3 in evidence); Department of Health and Woodhull Hospital records (Petitioner's Exhibit # 4 in evidence); the Medical Examiner's Case Worksheet (Petitioner's Exhibit # 5 in evidence); the Medical Examiner's Autopsy Report (Petitioner's Exhibit # 6 in evidence); the Medical Examiner's Infant Child Death Scene Report (Petitioner's Exhibit # 7 in evidence).
Neither parent testified. Respondent father called one witness, Dr. Simeon David, M.D., who was qualified as an expert in pediatrics and child abuse. Dr. David testified that the circumstances surrounding the baby's death were, in certain respects, similar to Sudden Infant Death Syndrome (hereinafter, "SIDS"). He testified, however, that SIDS is a diagnosis of exclusion and that here a different diagnosis had been provided. Dr. David's Curriculum Vitae was admitted into evidence Respondent's Exhibit # 1.
Respondents assert that the petitions should be dismissed because the baby's death was an accident. They emphasize that they never intended to hurt their son and that the Medical Examiner's testimony establishes that the death was unintentional. Respondents argue that they did not fail to exercise a minimum degree of care because their actions were inadvertent and the consequences were not foreseeable. In addition, they assert that taking the baby with them to 172 Vernon Avenue was not the cause of his death. They assert that death by "positional asphyxia" could have happened anywhere at anytime.
NYCCS and the Attorney for Melanie and Madelina disagree. They assert that respondents' intent is irrelevant. They contend that a finding of neglect can be based on an unintentional injury. They emphasize that the statute specifically provides for a neglect finding where, as here, a preponderance of the evidence establishes that the child's physical, mental, or emotional condition has been impaired as the result of the failure of his parents to exercise a minimum degree of care. They contend that although respondents did not specifically intend to harm their son, they failed to exercise a minimum degree of care and, as a result, he died. Accordingly, they assert that findings of neglect are warranted against both respondents.
For the reasons more fully set forth herein, the Court agrees with NYCCS and the Attorney for the Children and enters findings of neglect against respondent mother and findings of derivative neglect against both parents. Respondents equate the term "accident" with unintentional injury. They assert that since James Jr.'s death was unintentional, it was "accidental" and, therefore, immune from liability for neglect. The Court disagrees with this conclusion for a number of reasons. First, respondents ignore the plain language of the Family Court Act, which specifically provides for a finding of neglect based on an unintentional injury. Second, respondents ignore fundamental concerts of tort law; specifically, that liability in negligence does not require intent to cause injury. It requires only a failure to exercise reasonable care, which results in an injury that was reasonably foreseeable. Third, the term "accident" does not apply where, as here, the parties' intentional acts had unintended consequences and it is therefore not a defense to allegations of neglect.
Legal Analysis
1. The Family Court Act Specifically Authorizes a Finding of Neglect Based on an Unintentional Injury
The primary concern of Article 10 is the protection of children, not the culpability of parental conduct. Consequently, the definition of child neglect focuses on the nature of the harm to the child and not the mental state of the parent. A standard that focuses on the parent's intent essentially imposes a mens rea requirement in a neglect proceeding and defeats the statutory goals.
Although an unintended injury cannot be the basis of a finding of child abuse, it can be the basis of a finding of neglect. In asserting that an unintentional injury cannot form the basis for a neglect finding, respondents ignore the plain language of the statute. Family Court Act § 1012 (f) makes no reference to the intentional or unintentional nature of the child's injury. Where the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where it was excluded ( In re O'Brien, 419 F3d 104, 106 [2d Cir 2005]). Had the Legislature intended Family Court Act § 1012 (f) to be limited to injuries caused by "other than accidental means," it would have said so explicitly, as it did in Family Court Act § 1012 (e). A simple reading of the statute supports the conclusion that an unintended injury can form the basis for a finding of neglect.
Family Court Act § 1012(e) provides that a parent is liable for the abuse of their child, when they inflict or allow to be inflicted upon such child, physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ (emphasis provided). In contrast, Family Court Act § 1012(f)(i) provides that a parent is liable for the neglect of their child, when the child's physical, mental or emotional condition is impaired or placed in imminent danger of becoming impaired as a result of their failure to exercise a minimum degree of care.
This conclusion is also supported by the case law. The Appellate Division, Second Department has consistently upheld findings of neglect where a parent's failure to exercise reasonable care has resulted in an unintentional injury to their child. The intent of the parent is considered irrelevant. Likewise, where a parent commits an intentional act that has unintended consequences, a neglect finding may be entered if the parent should have been aware of the intrinsic danger of the situation, failed to take reasonable precautions and thereby placed the child's physical, mental or emotional condition in imminent danger of becoming impaired ( In re Lester M., 44 AD3d 944 [2d Dept 2007] [neglect finding entered where the danger of using a curling iron while sitting on a bed with a two-year-old child jumping on the bed should have been apparent; the fact that respondent failed to see the danger in such a situation showed an inability to protect the child from future harm]; In re D.-C., Samuel, 40 AD3d 853, 853-854 [2d Dept 2007] [neglect finding entered where respondent left a three-week-old child unattended in an unheated vehicle for 15 minutes since those circumstances depict a lack of attention to the special needs of a newborn and constitute neglect]; Febles v Dutchess County Dept. of Social Services Child Protective Services , 68 AD3d 993 [2d Dept 2009] [neglect finding entered where respondent left her seven-year-old son alone in a running vehicle for 20 minutes and thereby placed his physical condition in imminent danger of becoming impaired]; King v Perales, 153 AD2d 694, 695 [2d Dept1989] [although the parent did not intend to harm her daughter, she failed to exercise a minimum degree of care by pouring scalding water into the two-year-old's bath without testing the temperature since an accidental injury may constitute neglect where the parent should have been aware of the inherent danger of the situation]; see also In re Antonio NN. , 28 AD3d 826 , 827 [3d Dept 2006] [neglect finding entered where respondent allowed her two young children to play outside unsupervised for a substantial period of time in close proximity to a city street and thereby exposed them to actual and serious imminent harm]; Matter of Victoria CC., 256 AD2d 931 [3d Dept 1998] [neglect finding entered where respondent should have been aware that leaving a nine-month-old child unattended in a bathtub is intrinsically dangerous and manifests an appalling lack of judgment that placed the child at substantial risk of harm]; Matter of James HH., 234 AD2d 783, 784 [3d Dept 1996] [neglect finding entered although the parent did not intend to harm the child since he left a one-year-old child unsupervised in a room with a kerosene heater and an accidental injury may constitute neglect if the parent was or should have been aware of the intrinsic danger of the situation]; Sellnow v Perales, 158 AD2d 846, 847 [3d Dept 1990, appeal denied 89 NY2d 812 [although she did not intend to cause serious injury, the stepmother failed to exercise a minimum degree of care by hitting the child in the face; the risk that a child could be seriously injured when struck in the face by a person with long protruding fingernails is apparent and an unintentional injury may form the basis for a neglect finding where the parent should have been aware of the inherent danger of the situation]).
2. Negligence Involves a Foreseeable Injury Resulting from a Failure to Exercise Reasonable Care; An Accident is an Unintended Occurrence which could not have been Foreseen or Prevented by the Exercise of Reasonable Care
Although liability is imposed for injuries that result from a party's negligence, it is not imposed for injuries that are the result of purely accidental means. Negligence does not involve intent; it involves a foreseeable risk of harm, conduct unreasonable in proportion to the risk and injury. Under a negligence standard, a person is liable for the foreseeable consequences of their actions, regardless of whether they actually intended to cause injury. So long as the act or omission that caused the injury was done intentionally, it is irrelevant whether the actor recognized the inherent risk posed by the conduct. Knowledge may be imputed. Negligence measures conduct objectively and where an ordinary reasonable person would understand that their actions pose serious risks and acts without regard for the potential consequences, the law holds them responsible for the injuries that result.
See e.g., Conyers v Vinti, 107 AD2d 787 (2d Dept 1985), appeal denied 64 NY2d 1040 (liability properly imposed for personal injuries sustained by plaintiff against defendant who rear-ended plaintiff's vehicle at a stop light, despite defendant's claim that her dog jumped on the gas pedal and knocked her foot off the brake, since defendant's failure to restrain her dog from interfering with car's mechanical controls was not an unforeseeable event).
In contrast, the legal definition of an "accident" is an unexpected, unplanned and unforeseen injurious occurrence; something that does not happen in the usual course of events and that could not be reasonably anticipated (Black's Law Dictionary [8th Ed 2004]; Mutual Acc. Ass'n v Barry, 131 US 100). It is an event that was not intended and could not have been prevented by the exercise of reasonable precautions. Some courts and commentators have called occurrences "unavoidable," "pure" or "inevitable" accidents. Such accidents result solely from unknown or unforeseen causes or in an unexpected manner; they are not the result of the mistake, negligence or culpable conduct of any participant (NY Prac-Torts § 8:19; citing W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 29, at 162 [5th Ed 1984]; O'Brien v City of New York, 822 F Supp 943, 949 — 950 [EDNY 1993]; see generally, 79 NY Jur 2d Negligence § 4). In the words of the Court of Appeals, "[n]o liability for negligence attaches to a party when in the prosecution of a lawful act, injury to another is caused by a pure accident; nor can anyone be said to be negligent merely because he fails to make provision against an accident which he could not be reasonably expected to foresee" (14 NY Practice, New York Law of Torts § 7:18 [2009], citing Paul v Consolidated Fireworks Co. of America, 212 NY 117; see also, 79 NY Jur 2d Negligence § 4 [2010]; 57A Am Jur 2d Negligence § 38 [2010]; DiLorenzo v Venosa, 50 AD2d 603 [2d Dept 1975]; Toss v Randall, 279 AD2d 569 [2d Dept 2001]; Mikula v Duliba, 94 AD2d 503 [4th Dept 1983]).
According to the Third Restatement, the concept of an "unavoidable accident" is merely a repetition of the general rule that a party is not liable for harm unless the harm is caused by the party's failure to exercise reasonable care (Restatement 3d Torts § 6 [g]). In other words, an accident is considered "unavoidable" or "inevitable" if it is not proximately caused by the negligence of any party ( O'Brien v City of New York, supra, 822 F Supp at 949 950).
Proof that an accident was "unavoidable" or "inevitable" will constitute a defense to civil and criminal liability because such an accident was not attributable to negligence or because it was so unforeseeable that no amount of human foresight could have avoided it. A reasonable person cannot be expected to guard against such an accident. In order for an accident to be considered "unavoidable" or "inevitable" for purposes of defending against liability, it must be the result of an unknown or unforeseen cause. An intentional act that has unintended consequences, will not suffice. Generally, a consequence or a result, though unexpected, is not considered an accident; the means or cause must be accidental ( Eberts v Goderstad, 569 F3d 757, 760 [7th Cir 2009]; Hometowne Bldg. Co., L.L.C. v Amerisure Mut. Ins. Co., 2009 WL 3276509 [Mich App 2009]; American Family Mut. Ins. Co. v American Girl, Inc., 268 Wis2d 16, 38, 673 NW2d 65, 76 [Wis 2004]). Accordingly, where, as here, an injury or death results from a series of intentional acts, it is not considered accidental. It is only where the acts preceding the injury or death are unforeseen or unusual and proximately cause the result, that the result can be considered accidental (Black's Law Dictionary [8th Ed 2004]; Capone v Aetna Life Ins. Co., 592 F3d 1189, 1199 [11th Cir 2010]; Mutual Acc. Ass'n v Barry, 131 US 100; Moore v Lehigh Valley R. Co., 169 AD 177, 181-182 [3d Dept 1915], aff'd 217 NY 627).
Gaspard v Board of Educ. of City of New York , 47 AD3d 758 [2d Dept 2008] [liability cannot be imposed for negligence based on injuries sustained by a nine year-old who slipped and fell at a roller skating center as a result of the sudden and abrupt action by unknown skaters which could not have been avoided by even the most intense supervision]; Ronan v School Dist. of City of New Rochelle , 35 AD3d 429 [2d Dept 2006] [liability cannot be imposed for injuries sustained by a child during gym class while running when the student who was running ahead of him collided with a padded wall and fell to the ground, causing infant plaintiff to trip over him since the accident was caused by a spontaneous and unforeseen act which could not have been prevented by any reasonable degree of supervision]; Tassielli v United Skates of America, Inc. , 33 AD3d 908 [2d Dept 2006] [liability cannot be imposed against owners of a roller skating rink for injuries sustained by a skater in a sudden and abrupt collision with another skater where there was no showing that any amount of supervision would have prevented such a collision]).
3. The Instant Case
Applying these criteria to the facts at bar, the Court rejects respondents' assertion that the child's death was accidental and finds instead that it was the result of the parents' failure to exercise a reasonable degree of care. Accordingly, the Court enters findings of neglect and derivative neglect against respondent mother and findings of derivative neglect against respondent father.
A parent fails to exercise a minimum degree of care when he or she is aware or should have been aware of the risks inherent in a situation and fails adequately to supervise the child or otherwise creates a risk of injury to the child. Whether a parent has failed to exercise a minimum degree of care must be analyzed in light of the dangers and risks associated with the situation. The inquiry must focus on the harm to the child and whether that harm could have been prevented had the parent performed some act to remedy the situation or remove the danger. When a cautionary act by the parent would have prevented or reduced the likelihood that a child's physical, mental or emotional condition would be impaired, the parent has failed to exercise a minimum degree of care.
In this case, the death of James, Jr. may have been unintended but it was not the result of an "unavoidable" or "inevitable" accident. There was nothing in the circumstances leading up to the death that was unusual or unexpected. Although respondents did not intend to harm their baby and the results of their conduct were unplanned, their actions were otherwise deliberate. They intentionally removed a two-month-old infant from his home late one night in the middle of January, while he was recovering from a cold, without making adequate sleeping arrangements or taking necessary precautions against the cold, in order to bring him to an abandoned building without heat or electricity and allow him to sleep in a stroller for six hours without supervision, with a bottle propped into his mouth by a tee-shirt.
These actions clearly demonstrate a failure to exercise a minimum degree of care. The fact that respondents mistakenly believed that the baby would be safe in that environment does not mean that his death was an accident. Their conduct rose to the level of negligence. They failed to act as reasonably prudent parents under the circumstances. The dangers inherent in the situation should have been known to both respondents and their failure to anticipate that danger manifested a lack of judgment that placed the child at risk of harm and resulted in his death. Even though they did not intend to hurt the baby, they utterly disregarded the substantial probability that harm would result from their actions. Respondent mother's conduct in this regard is particularly troubling since she was warned that babies should not be allowed to sleep in strollers and that doing so could be dangerous.
NYCCS has also established that respondent mother failed to provide Melanie and Madelina with adequate food and shelter. The unrebutted evidence establishes that, even after the mother was provided with additional assistance, the children remained inadequately fed and the home continued to be in "deplorable condition," infested with roaches and mice and cluttered with garbage bags, dirty dishes and dirty clothing. This evidence establishes that the children's physical, mental or emotional condition was placed in imminent danger of impairment. In reaching these conclusions, the Court notes that both respondents chose not to testify and that this warrants the drawing of the strongest negative inference against them that the evidence will allow ( Matter of Antonio NN., 28 AD3d 826 [3d Dept 2006]; Matter of Evan Y., 307 AD2d 399 [3d Dept 2003]).
4. NYCCS has Established a Prima Facie Case of Derivative Neglect against Respondent Father and Respondent Mother
Family Court Act § 1046(a)(i) provides that "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 . . . the respondent." Even in the absence of direct evidence of actual abuse or neglect of other children, a derivative finding may be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any children in the parent's care, thereby making such children neglected under Family Court Act § 1012(f)(i)(B) ( Matter of Christina Maria C., 89 AD2d 855 [2d Dept 1982]; Matter of Dutchess County Dept. of Social Services on Behalf of Noreen K., 242 AD2d 533 [2d Dept 1997]).
Nevertheless, although the statute requires that evidence as to the neglect of one child be considered on the issue of the neglect of other children in the home, such evidence is not conclusive and does not establish a prima facie case of neglect of other children in the parents' care ( In re Abigail S., 21 AD3d 380 [2d Dept 2005]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992]). In other words, the fact that one child has been neglected, standing alone, is insufficient, without more, to support a finding that the child's siblings are also neglected ( see e.g., Matter of Randy AA., 265 AD2d 690 [3d Dept 1999]).
The determinative factor is whether the nature of the neglect, notably its duration, its proximity in time and the circumstances surrounding its commission, evidence such a fundamental flaw in respondents' understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists ( Matter of Dutchess County Dept. of Social Services on Behalf of Noreen K., 242 AD2d 533 , supra). Unless the underlying finding provides a reliable indicator that the siblings' physical, mental or emotional condition is in imminent danger of becoming impaired a finding of derivative neglect cannot stand ( Matter of Suzanne RR. , 35 AD3d 1012 [3d Dept 2006]).
Application of these factors to the case at bar, leads this Court to enter findings of derivative neglect against respondent father and respondent mother for James, Jr.'s siblings. It is the view of this Court that the seriousness and other circumstances surrounding respondents' actions at the time of the baby's death, evidence such a fundamental flaw in their understanding of the duties of parenthood that it can reasonably be inferred that the conditions that led to the underlying incident still exist. Accordingly, even without direct evidence of neglect as to the remaining children, the Court would find that their physical, mental and emotional condition is at risk of impairment while they are in the care of respondents.
The allegations of child neglect as to James S., Jr. are dismissed since he is deceased. Although the language of Family Court Act § 1012 (e)(i) contemplates that an abuse petition may be prosecuted on behalf of a deceased child ( see Matter of Alijah C ., 1 NY3d 375 ), the highest court in the State of New York to address the question has held that a neglect finding should not be entered on behalf of a deceased child ( Matter of Stephanie WW., 213 AD2d 818, 819 [3d Dept 1995]). Nevertheless, derivative findings may be entered as to the deceased child's surviving siblings where, as here, the parents' behavior posed a threat to the surviving children's physical, mental or emotional condition ( Id. at 819 [subject child's asphyxiation while in respondent's exclusive care, coupled the circumstances surrounding the death, demonstrate respondent's neglect of the deceased child and, therefore, support a finding that respondent's behavior posed a threat to the surviving child's physical, mental or emotional condition]; see also Matter of W. Children, NYLJ, June 6, 1999, p. 37, col. 4 [Fam Ct, Queens County]).
Accordingly, it is
ORDERED, that respondent father's motion to dismiss the allegations of child neglect against him based on the conditions of the respondent mother's home is granted; and it is further
ORDERED, that the allegations of child neglect as to James S., Jr. against respondent mother are dismissed; and it is further
ORDERED, that the allegations of child neglect as to James S., Jr. against respondent father are dismissed; and it is further
ORDERED, that a finding of child neglect is entered against respondent mother for Melanie S. and Madelina S. based on the unrebutted evidence of unsanitary and potentially dangerous conditions in the home; and it is further
ORDERED, that a finding of derivative neglect is entered against respondent mother for Melanie S. and Madelina S. based on the evidence of inadequate supervision and guardianship as to James S., Jr.; and it is further
ORDERED, that a finding of derivative neglect is entered against respondent father for Melanie S., Madelina S. and Alyssa Ebony S. based on the evidence of inadequate supervision and guardianship as to James S., Jr.; and it is further
ORDERED, that counsel and the parities are directed to appear for a dispositional hearing on July 28, 2010.