In re A.D.

Full title: In the Matter of A.D. E.M. Children Under Eighteen Years of Age Alleged to…

Court: Family Court, Kings County

Date published: May 3, 2016

2016 N.Y. Slip Op. 51116 (N.Y. Fam. Ct. 2016)

Opinion

NN-6882/15

05-03-2016

In the Matter of A.D. E.M. Children Under Eighteen Years of Age Alleged to be Neglected by D.D., Respondent.

Corporation Counsel, Michael Cordozo, by Elizabeth Brown, Esq., Special Assistant Corporation Counsel, Esq. appeared for the Petitioner, 330 Jay Street, 12th Floor, Brooklyn, NY 11201 Telephone No. 718-802-2761, Stevie Glaberson, Esq., Brooklyn Defender Services, Family Defense Practice, appeared for Respondent Father, 180 Living Street, Suite 300, Brooklyn, NY 11201, Telephone No. 347-592-2593. Winsome Rhudd, Esq., Assigned Counsel panel, appeared for the non-respondent Mother, 140 Broadway, 46th Flr, NY, NY 10005, Telephone No. (212) 208-1408. Richard Colodny, Esq. Assigned Counsel panel, appeared as Attorney for the Child, 185 Montague St., Brooklyn, NY 11201, Telephone No. 718-855-3179.

Ann E. O'Shea, J.

Corporation Counsel, Michael Cordozo, by Elizabeth Brown, Esq., Special Assistant Corporation Counsel, Esq. appeared for the Petitioner, 330 Jay Street, 12th Floor, Brooklyn, NY 11201 Telephone No. 718-802-2761, Stevie Glaberson, Esq., Brooklyn Defender Services, Family Defense Practice, appeared for Respondent Father, 180 Living Street, Suite 300, Brooklyn, NY 11201, Telephone No. 347-592-2593. Winsome Rhudd, Esq., Assigned Counsel panel, appeared for the non-respondent Mother, 140 Broadway, 46th Flr, NY, NY 10005, Telephone No. (212) 208-1408. Richard Colodny, Esq. Assigned Counsel panel, appeared as Attorney for the Child, 185 Montague St., Brooklyn, NY 11201, Telephone No. 718-855-3179. Ann E. O'Shea, J.

ACS alleges that Respondent is the biological father of A. D. and a "Person Legally Responsible" for the child E. M., and that he neglects the children by engaging in domestic violence against the children's mother in the presence of the children. At the close of Petitioner's evidence, the Respondent moved to dismiss the petition on the grounds that Petitioner had failed to establish a prima facie case of neglect. The Attorney for the Children joined in the motion.

A party seeking to establish neglect must show, by a preponderance of "competent, material, and relevant" evidence (FCA § 1046 [b] [I] and [iii]), that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the respondent's failure to exercise a minimum degree of care (FCA §1012 (f); Nicholson v. Scoppetta, 3 NY3d 357, 368 [2004]). Recognizing that a finding of neglect may be appropriate even when a child has not suffered actual harm, the legislature established "imminent danger of impairment" as an independent and separate ground of neglect (id. at 369). "Imminent danger" means "near or impending" danger, not merely possible (id). Whether actual or threatened, the harm must be " serious . . . not just . . . what might be deemed undesirable parental behavior" (id.). Additionally, to establish neglect, "there 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.), and there must be proof that the actual harm or imminent risk of harm is a result of "the parent's failure to exercise a minimum degree of care"(id. at 370)."' 'Minimum degree of care' is a baseline of proper care for children that all parents, regardless of lifestyle or social or economic position must meet" (id., internal quotations and citations omitted). The test is "'minimum degree of care' - not maximum, not best, not ideal . . . ." (id.).

The statute thus imposes two requirements for a finding of neglect. First, there must be proof of actual (or imminent danger of) physical, emotional, or mental impairment to the child. In order for danger to be "imminent," it must be near or impending, not merely possible. Further, there must be a causal connection between the basis for the neglect petition and the circumstances that allegedly produce the . . . imminent danger of impairment. This requirement is intended to focus neglect proceedings on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior. Second, any impairment, actual or imminent, must be a consequence of the parent's failure to exercise a minimum degree of parental care. This is an objective test that asks whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances. A parent may deviate from this standard by "unreasonably inflicting . . . a substantial risk" of harm to the child (Family Court Act § 1012 [f] [I] [B]). Critically, however, "the statutory test is minimum degree of care - not maximum, not best, not ideal - and the failure must be actual, not threatened. (Matter of Afton C., 17 NY3d 1 [2011])(citing Nicholson v. Scoppetta, 3 NY3d 357 [2004]).

Here, the evidence, considered in the light most favorable to the Petitioner, establishes at most that on one or more occasions Respondent yelled at the mother and called her names in the presence of the children, that seven-year-old E. D. did not like it when he did (understandable), and that E. D. covered her and her 18-month-old little sister's ears to block out the yelling.

The Second Department has held that loud verbal disputes between parents in front of a child are insufficient to establish that the child's physical, mental, or emotional condition was impaired or at imminent risk of impairment (The Matter of Imani B., 27 AD3d 645 [2d Dept. 2006]; see also The Matter of Anthony PP., 291 AD2d 430 [3d Dept. 2002]). Parents argue. Parents argue in front of their children. Not the best practice, but if every case of parents loudly arguing in front of their children could constitute neglect, virtually all children in New York City would be in foster care or under ACS supervision. For a verbal dispute in the presence of a child to rise to the level of neglect, it would have to be so serious and abusive as to result in provable physical, mental, or emotional harm to the child. No such circumstances exist here.

Petitioner provided no evidence that the children were ever physically harmed or put in imminent risk of physical harm as a result of Respondent's yelling. Nor did Petitioner provide any evidence that the children were mentally or emotionally harmed or placed in imminent danger of such harm as a result of Respondent's yelling. Unlike physical injury, whether a child's mental or emotional condition has been impaired or placed at risk of impairment "may be murky" (Nicholson, 3 NY3d at 370). "Impairment of mental or emotional condition" is specifically defined by the Family Court Act 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(h); see Nicholson, 3 NY3d at 369-70).The level of proof is high to "protect against unwarranted State intervention into private family life" (Nicholson, 3 NY3d at 370).

The evidence in this case - that seven-year-old Emelia told the case worker that Respondent yelled at her mother and called her names, that she did not like it when he did so, and that she covered her and her 18-month-old sister's ears to block out the yelling — does not establish "impairment of mental or emotional condition as defined by FCA §1012(h). While doing something that upsets a child is not good, something more substantial is required to establish neglect under the Family Court Act.

The cases cited by Petitioner are inapposite. Matter of Crystal R. v. James R., Sr. ( 2008 NY Misc Lexis 7519 [S. Ct. Suffolk County 2008]) involved serious physical abuse: respondent threw a phone at the mother's head causing a serious gash and bloodshed; he also kicked her in the ribs and leg. Moreover, the Court found that the children were at risk of physical injury as a result of the flying telephone. No such risks exist in this case. Matter of Jayden B. (91 AD3d 1344 [4th Dept. 2012]) involved a pattern of physical abuse, monthly calls to the police, and a negative inference against the Respondent, none of which exists in the present case. In the Matter of Kevin M.H. (76 AD3d 1015 [2d Dept. 2010]) involved a course of conduct and respondent's multiple unfounded allegations of maltreatment of the child by the nonrespondent mother.

For all the foregoing reasons, the Court finds that, even considering the evidence in the light most favorable to Petitioner, the Petitioner has failed to establish a prima facie case of neglect. Respondent's oral motion to dismiss the petition is, therefore, granted and the petition is dismissed. Dated: May 3, 2016 __________________________________ Ann O'Shea, AJSC