Opinion
V-03240/07.
Decided March 19, 2008.
Kenneth Robinson, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Brooklyn NY.
Lynn Vogelstein, Esq., Brooklyn Family Defense Project, Legal Services of New York City, for respondent mother, Brooklyn NY.
Sara Reisberg, Esq., Law Guardian, Juvenile Rights Project, Legal Aid Society, Brooklyn NY.
The issue currently before the Court in this pre-fact-finding Family Court Act article 10 proceeding is whether to grant respondent mother's motion to dismiss specified allegations in the petition filed by the Administration for Children's Services based on res judicata, failure to state a cause of action and a defense established by documentary evidence. For the reasons set forth herein, the Court grants the motion in part and denies it in part. To the extent that the current petition is based on matters already litigated and matters that should have been litigated during the prior child protective proceeding, the allegations in the petition are dismissed. The motion to dismiss is denied with respect to the remaining allegations.
On September 15, 2004, ACS filed a petition against respondent mother alleging educational and medical neglect as well as a failure to comply with April 2004 and August 2004 referrals to the Family Preservation Program. Specifically, the petition alleged that from July 2004 until the filing of the petition, respondent mother failed to ensure that the child Jeffery attended weekly psychiatric appointments and received prescribed medication although he had been hospitalized and diagnosed with "impulse control disorder and conduct disorder." In addition, the petition alleged that the child missed 45 days of school during the 2003-2004 school year and that respondent mother never signed the necessary paperwork for the child to see a paraprofessional to assist Jeffery with his homework although a referral had been made by the child's guidance counselor. A fact-finding hearing was conducted over the course of 14 months during seven court dates beginning on November 28, 2005 and ending on January 25, 2007. At the conclusion of the hearing, Hon. Nora L. Freeman dismissed the petition with prejudice.
Eight months later, on September 24, 2007, ACS filed the instant petition against respondent mother alleging among other things educational and medical neglect as well as a failure to comply with referrals for services. The first paragraph in the petition alleges that respondent mother suffers from a personality disorder and that she has refused to undergo a mental health evaluation. The second paragraph in the petition alleges that respondent mother failed to ensure that the child Jeffery attends weekly psychiatric appointments and receives prescribed medication although he has been diagnosed with "attention deficit disorder." The third paragraph in the petition alleges that Jeffery's whereabouts are unknown although respondent mother indicated that he was residing in Florida with an older sibling and he was observed in New York in July 2007. The fourth paragraph in the petition alleges that Jeffery missed 65 days of school during the Fall 2005 semester, 77 days of school during the Spring 2006 semester, 69 days of school during the Fall 2006 semester and 24 days of school during the Spring 2007 semester. The fifth paragraph in the petition alleges that respondent mother failed to have a dog removed from her home although the dog bit two children in May 2005, as well as Jeffery in August 2007 and that he required medical attention as a result. The sixth paragraph in the petition alleges that respondent mother refused offers for preventative services and family counseling, that she has inadequate food in the home and that she lacks a reliable means of support.
When Considering a Motion to Dismiss, Issue Finding Rather than Issue Resolution is the Court's Function
The court commences its analysis by noting that on a motion to dismiss a petition, the pleadings are to be afforded a liberal construction. The court must accept the facts alleged in the petition as true, accord the petitioner the benefit of every possible favorable inference which may be drawn from the petition and determine only whether the facts as alleged fit within a cognizable legal theory ( Matter of Moises D. , 128 AD2d 775 [2nd Dept 1987]; Rotanelli v Madden , 172 AD2d 815 [2nd Dept 1991]; Williams v Aliano, 246 AD2d 592 [2nd Dept 1998]; Fisher v Queens Park Realty Corp., 41 AD2d 547 [2nd Dept 1973]).
If the facts stated set forth any cause of action cognizable at law, the pleadings must be sustained ( Morone v Morone , 50 NY2d 481; Rovello v Orofino Realty Co., Inc. , 40 NY2d 633; In re Lyndell C. R., 102 Misc 2d 723 [Fam Ct, New York County 1980]; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3211:24, at 31; One Acre, Inc. v Town of Hempstead , 215 AD2d 359 [2nd Dept 1995]). Issue finding rather than issue resolution is the court's function ( In re Christopher Anthony M. , 46 AD3d 896 [2nd Dept 2007]; Patricia YY v Dept of Social Services, 238 AD2d 672 [3rd Dept 1997]).
The relevant inquiry is whether the proponent of the pleading has a cause of action, not whether he has stated one or whether he may ultimately be successful on the merits ( Guggenheimer v Ginzburg , 43 NY2d 268; Rovello v Orofino Realty Co., Inc. , 40 NY2d 633). In other words, "[d]raftsmanship is secondary. Under the CPLR, if a cause of action can be spelled out from the four corners of the pleading, a cause of action is stated and no motion lies under CPLR 3211 § (a) (7)." "The pleading can be parenthetically drawn; it can reek of miserable draftsmanship. That is not the inquiry. We want only to know whether it states a cause of action — any cause of action. If it does, it is an acceptable CPLR pleading" (Siegel, New York Practice § 208 [4th ed. 2008]).
The Court must also be cognizant of the fact that the powers of the Family Court under article 10 are intended to be quite broad. Family Court proceedings do not focus on penal sanctions but are instead directed to the protection of minors. The statute is designed to "help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" (Family Court Act § 1011). With that mandate in mind, the courts have repeatedly held that "the usual treatment of transgressions by limiting legal prosecutions thereof to a statutory period is unavailing in Family Court," which recognizes no statute of limitations ( Matter of Charles DD. , 163 AD2d 744 [3rd Dept 1990] [eight-year lapse of time from the occurrence of the abuse to the initiation of the abuse proceeding did not deny stepfather due process or equal protection under the law]).
Nevertheless, it is well-settled that a finding of neglect cannot be based on past deficiencies alone ( Matter of Daniel C., 47 AD2d 160 [1st Dept 1975] [conduct more than two years old at the time of the filing of a neglect petition standing alone would not be proof of neglect]; Matter of Sais, 94 Misc 2d 40 [Fam Ct, Suffolk County 1978] [allegations based solely on prior adjudications two to four years before, are insufficient to establish neglect]; Matter of Dina M., 104 Misc 2d 766 [Fam Ct, Suffolk County 1980] [dismissing a neglect petition as insufficient where it was based upon a two-year-old incident]; In re Keith B ., 306 AD2d 343 [2nd Dept 2003]).
Allegations in a neglect petition may not be "stale" and must refer to present, near contemporaneous or ongoing conduct ( Matter of TC. , 128 Misc 2d 156 [Fam Ct, New York County 1985] [allegations must refer to present, near contemporaneous or ongoing conduct or continuing behavior patterns and the allegations may not be stale]; Matter of Maureen G. , 103 Misc 2d 109 [Fam Ct, Richmond County 1980] [proof of abuse or neglect must be so proximate in time to the date of the current proceedings that it can reasonably be concluded that the condition is a current one that still exists; the evidence must not be stale]; Matter of Theresa C. , 121 Misc 2d 15 [Fam Ct, Monroe County 1983]; Matter of Deanna E. , 150 Misc 2d 1074 [Fam Ct, Schenectady County 1991] [dismissing an abuse proceeding since there had been a two year delay in prosecuting the case]; see also Matter of W.M. and C.M., 2001 WL 914103 [Fam Ct, Schenectady County]).
The Doctrine of Res Judicata Precludes the Relitigation of Matters actually Litigated as well as any Matters that might have been Litigated in a Prior Proceeding
In addition, the doctrines of res judicata and collateral estoppel preclude the relitigation of allegations previously dismissed with prejudice by court order (50 Corpus Juris Secundum Judgments § 798 [2008]; In re Mirelle F. , 4 Misc 3d 1011(A) [Sup Court, Queens County 2004] [dismissal of prior petition with prejudice after a fact finding hearing, barred petitioner from bringing a new action in Family Court based upon the same incidents that were previously litigated]; Mary SS v Charles TT ., 209 AD2d 830 [3rd Dept 1994] [where prior petition was dismissed with prejudice, party is barred by res judicata from bringing a new action in Family Court involving the same issues]; In re W.M. , 2001 WL 914103 [Fam Ct, Schenectady County]).
Res judicata or claim preclusion is invoked to prevent a party, or one in privity with a party, from relitigating a previously litigated action. Generally, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or seeking a different remedy. Under the doctrine of res judicata, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law decided therein in any subsequent action involving the parties to a litigation and those in privity with them ( Gramatan Home Investors Corp v Lopez , 46 NY2d 481; Frances W. v Steven M. , 15 Misc 3d 839 [Fam Ct, Queens County 2007]).
Res judicata bars not only matters that were actually put in issue in the prior action, but also those that should have been ( Fogel v Oelmann, 7AD3d 485 [2nd Dept 2004]). A judgment in one action is conclusive in a later one not only as to any matters actually litigated, but also as to any that might have been litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first ( Schuykill Fuel Corp. v B. C. Nieberg Realty Corp. 250 NY 304; Chen v Fischer , 6 NY3d 94 [a final judgment settles the parties' rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated]; Bolotnikov v Bolotnikov , 262 AD2d 318 [2nd Dept 1999] [a subsequent proceeding may not be used to relitigate matters that were or should have been determined in a prior proceeding]; Wareham v Wareham , 34 AD2d 647 [2nd Dept 1970] [prior order is binding as to all matters that were litigated or should have been litigated]; Giryluk v Giryluk , 149 AD2d 665 [2nd Dept 1989] [Family Court order is binding as to all matters that were or should have been litigated and is res judicata as between the parties]).
Res judicata applies only when the same cause of action is repeated and has therefore been referred to as "claim preclusion." Collateral estoppel or "issue preclusion," applies when the second cause of action is distinct or different, applying to issues rather than to whole claims or defenses. The doctrine of collateral estoppel is a corollary to the doctrine of res judicata. It precludes a party from relitigating in a subsequent proceeding, an issue raised in a prior proceeding and decided against that party or those in privity, whether or not the causes of action are the same ( see e.g., In re Jasmine R. , 8 Misc 3d 904 [Fam Ct, Queens County 2005] [respondent was collaterally estopped from relitigating the issue of her mental illness because she was a party to prior termination of parental rights and child protective proceedings and the issue of her mental illness in the prior proceedings was substantially identical to the issue presented in the current child protective proceeding, where respondent had a full and fair opportunity to litigate the issue with the assistance of counsel in the prior proceeding]). Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling ( D'Angelo v State Ins. Fund , 2008 WL 331694 [2nd Dept 2008]; Luscher ex rel. Luscher v Arrua , 21 AD3d 1005 [2nd Dept 2005]; Juan C. v Cortines , 89 NY2d 659 [1997]; Nicholson v Nicholson , 2 Misc 3d 1002 [A] [Sup Ct, Kings County 2003]; Kaufman v Eli Lily , 65 NY2d 449 [1985]; Schwartz v Public Adm'r of Bronx County , 24 NY2d 65 [1969]).
The purpose of res judicata is to reduce litigation and conserve the resources of the court and litigants based upon the notion that it is not fair to permit a party to relitigate an issue that has already been decided against it ( Nicholson v Nicholson , 2 Misc 3d 1002(A) [Sup Ct, Kings County 2003]; Juan C. v Cortines , 89 NY2d 659). These principles, necessary to conserve judicial resources by discouraging redundant litigation, are grounded on the premise that once a person has been afforded a full and fair opportunity to litigate a particular issue, that person may not be permitted to do so again ( Gramatan Home Investors Corp v Lopez , 46 NY2d 481). The underlying assumption is that the party against whom preclusion it is being invoked has already had a day in court and if they are unsatisfied, the proper course is to appeal the unsatisfactory result rather than ignore it and attempt its relitigation in a separate action ( Jackson v Brinkman , 10 Misc 3d 1068(A) [Sup Ct, Kings County 2006]; Juan C. v Cortines , 89 NY2d 659).
Application of these criteria to the facts at bar leads this Court to conclude that the allegations in the second petition regarding incidents that took place prior to January 25, 2007, the date the first proceeding was dismissed with prejudice, are barred from litigation by res judicata as "not only matters that were actually put in issue in the prior action, but also those that might have been." Additionally, the Court finds that almost all of the allegations regarding incidents that allegedly took place prior to the completion of the first fact-finding hearing are "stale" and unrelated to present, near, contemporaneous or ongoing conduct.
The prevailing view, as summarized in the Second Restatement of Judgments is that "[t]he law of res judicata now reflects the expectation that parties who are given the capacity to present their entire controversies shall in fact do so" (Restatement of Judgments Second § 24 comment [a] [1982]). That is precisely what ACS failed to do in the instant case ( In re Yan Ping Z ., 190 Misc 2d 151, 156 [Fam Ct, Kings County 2001]). In the second petition ACS filed against respondent mother, it included allegations of neglect of which it must have had actual knowledge long before January 25, 2007. But ACS never sought leave of the court to file an amended petition and given the provision in Family Court Act § 1051 (b) for amending the pleadings to conform to the proof, and the CPLR's liberal rules for amendment, it is unlikely that leave to amend would have been denied. Yet ACS chose instead to wait until the 2004 petition had been dismissed to file "new" allegations of neglect that are in fact "old" allegations that should have been presented earlier ( In re Yan Ping Z ., 190 Misc 2d at 157]).
In re Yan Ping Z . ( 190 Misc 2d at 157), the Family Court, Kings County, held that while double jeopardy does not apply to neglect proceedings, principles of issue preclusion and mandatory joinder of claims operate to preclude ACS, as a matter of fundamental fairness, from prosecuting charges which could have been included by amendment in a prior neglect petition. Accordingly, ACS was precluded from litigating claims regarding events that allegedly occurred before the first petition was filed and of which it had actual knowledge while the first petition was pending. Having waited to file those charges until after it lost the first case, ACS was precluded from relying on charges that should have been included in the first petition, to file successive proceedings. The court noted the problems created by permitting a governmental agency, such as ACS, to file successive proceedings "until it obtained the result it wanted." The court rejected ACS's assertion that the doctrines of parens patriae or the best interests of the child justified a potentially endless series of neglect prosecutions The court, recognizing the paramount concern for the protection of children and the absence of criminal sanctions emphasized that ACS should nevertheless be required to present it's entire controversy once it is given the opportunity to do so. Otherwise, the court cautioned, ACS may well wait and decide to "hold back" various charges of neglect or abuse for use in the event their initial petition is dismissed. That would allow ACS to file subsequentpetitions after the first petition is dismissed. Not only is this concept of perpetual trial offensive to a litigant's basic due process rights, it also results in intolerable hardships for already overburdened trial courts.
Documentary Evidence that is not Otherwise Admissible Cannot Serve as the Basis for a Motion to Dismiss
A motion to dismiss based on documentary evidence pursuant to CPLR § 3211 (a) (1) will only be granted if the documentary evidence submitted is legally admissible ( Advanced Global Technology, LLC v Sirius Satellite , 44 AD3d 317 [1st Dept 2007] [documentary evidence that is not otherwise admissible cannot serve as the basis for a motion to dismiss based on a defense founded upon documentary evidence]; Bakery Salvage Corp. v Maple Leaf Foods , 195 AD2d 954 [4th Dept 1993] [the CPLR contemplates submission of evidentiary material on a motion to dismiss and other documents do not qualify]; Denicker v Rohan , 236 AD2d 359 [2nd Dept 1997]).
The term "documentary evidence" as referred to in CPLR § 3211(a) typically means judicial records such as judgments and orders or out-of-court documents such as contracts, deeds, wills, and/or mortgages (Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3211:10, at 20). It also includes "[a] paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion is based" ( Id. at 21; see also, 7 Weinstein-Korn-Miller, NY Civil Practice, § 3211.06; Estate of Webster v State of New York , 2003 WL 728780 [Ct Claims, New York 2003]).
Here, respondent mother has moved to dismiss the third allegation in the petition based upon purported documentary evidence. The motion is denied. The "documentary evidence" submitted by respondent mother in support of her motion consists of several pages of what is apparently a portion of the ACS case record. These documents are inadmissible and therefore cannot be considered on a motion to dismiss pursuant to CPLR § 3211(a) since they do not satisfy the statutory requirements for "documentary evidence."
Conclusion
The motion to dismiss is granted as to the second allegation in the petition to the extent that it alleges that respondent mother failed to ensure that the child Jeffery attended weekly psychiatric appointments and received prescribed medication prior to January 25, 2007. The motion is also granted as to the fourth allegation in the petition to the extent that it alleges that Jeffery missed school during the Fall 2005 and Spring 2006 semesters. The motion is also granted as to the fifth allegation to the extent that it alleges that respondent mother failed to have a dog removed from her home in May 2005. Clearly those incidents, which took place between the date that the first petition was filed and the date that it was dismissed, were known to ACS during the prior proceeding and would have been put in issue in the prior action had an appropriate motion to amend the prior petition been granted.
To the extent that the petition alleges medical neglect and failure to take necessary appropriate measures to protect the child from known risks associated with the dog, based on events that took place after the dismissal of the first petition, the motion to dismiss is denied. Likewise, to the extent that the petition alleges educational neglect for the period from the Fall 2006 semester until the Spring 2007 semester, the motion to dismiss is denied. Although the Fall 2006 semester had concluded before the first fact-finding hearing was completed, it is possible that ACS would not have known of the child's Fall 2006 attendance in time to have filed a motion to amend the first petition. Additionally, the motion to dismiss is denied with respect to the allegations concerning educational neglect for the period following the Fall 2006 semester. Neither res judicata nor collateral estoppel bar a new petition from being filed notwithstanding dismissal of an earlier petition against the same parent, if the later petition presents "subsequent allegations of neglect not covered by the [earlier] petition" ( Matter of Mercedes R., 300 AD2d 664 [2nd Dept 2002]; Matter of Nassau County Dept. of Social Services on behalf of Jean G. , 225 AD2d 779 [2nd Dept 1996]), or "a completely different time period and a different service plan than were at issue in the previous . . . proceeding." ( Matter of Jesus II , 249 AD2d 846 [3rd Dept 1998]).
The remaining allegations in the petition, although inartfully drafted, adequately allege, for pleading survival purposes, a cause of action under article 10 of the Family Court Act. The Court rejects respondent mother's objections to the sixth paragraph of the petition based on the assertion that it seeks to penalize respondent mother for her poverty. Allegations that a parent has failed to take advantage of proffered assistance and chooses instead to live with the children under conditions that place them at risk have been held to support a neglect finding ( see e.g., In re Christian Q. , 32 AD3d 669 [3rd Dept 2006]; In re Trebor UU ., 279 AD2d 735 [3rd Dept 2001]; In re Ayana E. , 162 AD2d 330 [1st Dept 1990]). The relevant inquiry is whether ACS as the proponent of the pleading has a cause of action, not whether they have stated one or whether they may ultimately be successful on the merits.
Accordingly, IT IS ORDERED that respondent mother's motion is granted to the extent that ACS shall be precluded at fact-finding from seeking to prove:
1. medical neglect based on events that took place prior to January 25, 2007;
2. inadequate guardianship based on her alleged failure to take necessary measures to protect the child from known risks associated with the dog, based on events that took place prior to January 25, 2007; and
3. educational neglect for the period prior to the Fall 2006 semester.