Opinion
NA-#####-16
05-23-2018
In The Matter of C.R. A Child Under Eighteen Years of Age, Alleged to be Abused and Neglected by A.G. (RM) J.O. (R/PLR), Respondents.
James Quinn, Jr., Esq. NYC Administration for Children's Services, Family Court Legal Services Mina Wallner, Esq. Counsel for Respondent/Person Legally Responsible (R/PLR) Center for Family Representation Jeffrey Oakley, Esq. Counsel for Respondent Mother (RM) Neighborhood Defender Service of Harlem Linda Diaz, Esq. Attorney for the Child Lawyers for Children
James Quinn, Jr., Esq. NYC Administration for Children's Services, Family Court Legal Services Mina Wallner, Esq. Counsel for Respondent/Person Legally Responsible (R/PLR) Center for Family Representation Jeffrey Oakley, Esq. Counsel for Respondent Mother (RM) Neighborhood Defender Service of Harlem Linda Diaz, Esq. Attorney for the Child Lawyers for Children Patria Frias-Colon, J.
PROCEDURAL HISTORY:
On or about August 5, 2016, New York City Administration of Children's Services (ACS) filed a Family Court Act (FCA) Article 10 petition alleging abuse and neglect against the Respondent Mother (RM) A.G. and the Respondent/Person Legally Responsible (R/PLR) J.O. The petition alleged infliction of physical injury upon the three-year-old Subject Child (SC), C.R., other than by accidental means. Said physical abuse resulted in the SC's death. Specifically, it is alleged that on or about August 3, 2016, the SC was brought to Metropolitan Hospital without a pulse, unresponsive, and unconscious. He presented with swelling, bruising, scratches and internal bleeding, including in the brain. It is further alleged that both Respondents gave inconsistent accounts of how the SC sustained the fatal injuries and the injuries were also inconsistent with the explanation provided by RM to hospital staff.
The attorney for the RM, Mr. Oakley, filed this motion to dismiss on or about February 14, 2018 seeking dismissal of the neglect petition. Mr. Quinn, on behalf of the Administration for Children Services (ACS) filed an opposition reply on or about March 19, 2018. Mr. Oakley then filed a reply to ACS's opposition response on or about March 26, 2018. The Court granted Mr. Oakley's motion to dismiss the petition over ACS's objection and rendered its oral decision on or about May 23, 2018.
FACTS:
On August 3, 2016, RM Alexandra A.G. was living with her three year-old son C.R. at the Jefferson Houses. That same day, RM A.G. placed a 911 call and responding police and medical units found her son unconscious, battered and bruised. On August 5, 2016, C.R. died at Cornell-Weill Hospital. The medical examiner declared Caleb's death a homicide, determining that he had died from multiple blows to the head and neck.
R/PLR J.O. was allegedly visiting RM A.G. when Caleb suffered his fatal injuries. The petition alleged that the respondents gave inconsistent accounts as to the circumstances leading to C.R.'s injuries. No one has been prosecuted for C.R.'s death.
RM has filed an affidavit, motion and reply memorandum in support of her motion that the petition should be dismissed, without prejudice, as moot and not justiciable at this time because its adjudication could not have any immediate consequence on the parties. RM also moves to dismiss on the grounds that this Court lacks subject matter jurisdiction to adjudicate a case of neglect and abuse where there is a deceased child with no living siblings and no other subject children under respondent's care.
In further support of her motion, RM in her affidavit claims that she has no other children, that she does not care for or act in a parental role with other children and has no plans to do so, is not pregnant and has no intention to become pregnant.
DISCUSSION:
In the case of In re Alijah C, 1 NY2d 375 (2004), respondent mother left her youngest son in the bathtub while looking for her other children. Upon returning, she found that he had drowned. Thereafter, petitioner Department of Social Services (DSS) filed a petition against respondent pursuant to FCA Article 10, alleging that she committed acts of "abuse" and "severe abuse" against him and that she derivatively neglected her other children. The respondent consented to a finding of neglect as to each of the surviving children but moved to dismiss the abuse petition filed on behalf of her son. The Law Guardian and DSS opposed the motion.
The Family Court granted the respondent mother's motion to dismiss the remainder abuse claim, holding that "where an abuse petition is filed on behalf of a deceased child, the purpose of filing the petition can no longer be served and therefore such a petition must be dismissed as moot." Thereafter, a dispositional order was entered adjudicating the surviving children neglected and releasing the children to the custody of their maternal grandmother. The Law Guardian appealed the Family Court's order dismissing the abuse petition as to the deceased child.
The Appellate Division affirmed the dismissal of the abuse petition (302 AD2d 838, 755 N.Y.S.2d 757 [3rd Dept 2003]). The Court relied on Matter of Stephanie WW., 213 AD2d 818, 623 N.Y.S.2d 404 (3d Dept.1995), which held that a neglect petition could not be brought on behalf of a deceased child because the subject child was no longer in need of the protections of FCA article 10 and therefore had to be dismissed. Because the Third Department concluded that there was no distinction between neglect and abuse petitions, it held that a deceased child may not likewise be the subject of an abuse petition.
The Court of Appeals in Alijah C. reversed the dismissal of the abuse petition. It held that an abuse petition could be adjudicated despite the death of the child as a determination would have a bearing as to the disposition of surviving children, i.e., that the Legislature had intended "to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramount in termination of parental rights proceedings as to surviving children" and further noted that the FCA had defined abuse and neglect differently. See 1 NY2d at 378-79, 380 n. 1 (emphasis added).
The Alijah Court stated that it only considered whether an abuse petition survived the child's death and would not address whether a neglect petition could not be continued under the same circumstances. See 1 NY2d at 380 n.1. The clear implication was that the Alijah Court found that, unlike neglect petitions, a deceased child could be the subject of an abuse petition if there were surviving children.
Accordingly, there are three conclusions that can be drawn from Alijah that steer the decision by this Court. First, the Third Department of the Appellate Division in Matter of Stephanie WW held that a deceased child cannot be the subject of a neglect petition. As this decision has not been overturned or even criticized by the Court of Appeals, this Court is not going to rule otherwise.
Matter of Stephanie WW., 213 AD2d 818, 623 N.Y.S.2d 404 (3d Dept.1995)
Second, a deceased child can be the subject of an abuse petition, but only if there are surviving children or other children under the care of that person or children over whom such person is "legally responsible" (see FCA § 1012[g] [defining "Person legally responsible" to include "the child's custodian, guardian, (or) any other person responsible for the child's care at the relevant time"]); see Matter of Riley II, 68 AD3d 1312 (3rd Dept 2009) (after respondent voluntarily surrendered her parental rights during the pendency of the appeal, the claim that the child has been severely abused was dismissed as moot); see also Matter of Yamillette G., 23 Misc 3d 841, 2009 Slip Op 29049 (Fam Ct, Kings County) (surviving half-sister). The Riley Court specifically noted, in dismissing the severe abuse claim, that unlike the facts in Alijah, the respondent mother in Riley had no other children. To the extent that petitioner argues that SSL § 384-b(8)(ii) and FCA § 1012(e)(i) and (iii) establish a five-year forward-looking window that allows this Court to render an abuse decision, the additional cases cited are just not sufficiently on point to outweigh the contingent nature of potential circumstances. While respondent's affidavit disclaiming intent to have additional children or to ever have legal responsibility over children has not been vetted and is of little moment, her acknowledgement that a dismissal of the petition would be without prejudice and that an amended petition could be brought if her circumstances changed is not without basis. Cf. Matter of A.L. (In re Forestdale Inc.), 52 Misc 3d 1210(A), 41 N.Y.S.3d 719 (Fam Ct, Queens County 2016) (where parents were arrested for their child's death in 2007 and sibling A.L. was born in 2008, abuse and severe abuse petition initiated in 2012 was valid).
Yamillette was the half-sister of Haley, who was killed by Yamillette's father Edwin. The finding of derivative severe abuse against Edwin [with respect to Yamilette] was predicated on Edwin's status as having been found to have severely abused Haley. The Family Court's basis for finding that Edwin had severely abused Haley was that he was deemed "legally responsible" for Haley pursuant to Social Services Law (SSL) § 384-b(8)(a)(iii)(A), which in turn allowed for the derivative finding of severe abuse regarding Yamilette. The Family Court stated that the claims of severe abuse and derivative severe abuse would have failed under SSL § 384-b(8)(a)(i), as Edwin was not Haley's "parent".
Petitioner, in its response to respondent's motion, cites Matter of Robert A., 109 AD3d 611 (2nd Dept 2013) in support of the position that this Court can adjudicate an abuse and neglect petition where the underlying facts involve a deceased child and there are no other children involved. In Robert A., the mother and father of Robert A., who had died, were charged with abuse. The father appealed that finding as well as the finding that he had derivatively abused his two other children. The mother appealed the abuse finding on the grounds that Robert A. was deceased and she had no other children. The Second Department, in rejecting the mother's appeal, cited Alijah C, SSL § 384-b(8)(ii) and FCA § 1012(e)(i), thereby implying that the mother was legally responsible for the two other children. That the Second Department made those three citations without specifically stating her status may have been a function of her specific claim on appeal.
Petitioner cited Matter of Mylasia P., 104 AD3d 856 (2nd Dept 2013) in support of its position that this Court retains jurisdiction to adjudicate. Mylasia P. was a neglect proceeding in which the RM was accused of having neglected one daughter, Mylasia, and derivatively neglected a sibling. Although Mylasia turned 18 during the underlying proceeding, the Second Department held that the Family Court retained jurisdiction because it was commenced prior to her eighteenth birthday. This Court not only finds that the facts in the instant proceedings are more analogous to those described in Matter of Stephanie WW (deceased child moots neglect proceeding) but notes that in Mylasia, unlike the instant case, the respondent mother had another child who was still owed the protections of Article 10.
The aforementioned courts' reluctance to apply the exception to the mootness doctrine in abuse and neglect cases is highlighted in Matter of Maddock E., 138 AD3d 559, 28 NYS3d 602 (1st Dept 2016). This case involved a respondent father's attempts to dismiss several amended abuse and/or neglect petitions. After the first amended petition had been rendered moot by a superseding second amended petition, the Family Court declined to dismiss the second amended petition outright but had instead issued an adjournment in contemplation of dismissal (ACD). As the ACD period had expired, the father's appeal was rendered moot. In rejecting a mootness exception, the Appellate Division stated that the issue raised in the petition was not one that "typically evad[ed] review" as per the criterion set forth in Hearst Corp. v. Clyne. Yet, despite the mootness of the second petition, the Appellate Division went further in order to avoid any chance that the Family Court's order (which was an ACD rather than an outright dismissal) could "spawn legal consequences or be cited as precedent" and still used its discretion to vacate an already moot order. In sum, this Court believes that the circumstances in the instant case do not allow it proceed on the petition on the grounds that a mootness exception applies.
Accordingly, for the reasons above, the Court is constrained to grant RM A.G.'s motion to dismiss the abuse and neglect petition without prejudice.
PURSUANT TO SECTION 1 113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: May 23, 2018
ENTER
Hon. Patria Frias-Colón
Third, the fact that neither the Appellate Division in Stephanie WW nor the Court of Appeals in Alijah proposed potential holdings, depending on what the respondent mother did in the future, e.g., if the mothers became pregnant or accepted jobs caring for children, leaves this Court to likewise decline to make a determination based on a possible future event. See Riley, 68 AD3d at 1313 ("that respondent might successfully challenge her judicial surrender in the future or that she might subsequently have another child might require the protection of FCA Article 10 too speculative to constitute an exception to the mootness doctrine").[sup4] An issue is moot unless it is found to be within the mootness exception (which permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable). Hearst Corp. v Clyne, 50 NY2d 707, 714 (1980). The three factors justifying the exception are the: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." 50 NY2d at 714-15.