Opinion
Docket No. NN-12529-30/22
09-20-2023
In the MATTER OF J.B. S., J.e. S., Children Alleged to be Neglected by J.S.
Attorney for Petitioner, By: Jessica Guilbeault, Esq., Administration for Children's Services, Family Court Legal Services, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451 Attorney for Respondent Father J.S., By: Davis Vinckier, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, NY 10451 Attorney for Non-Respondent Mother I.F.H., By: Paul Sweeney, Esq.910 Grand Concourse, Suite 1C, Bronx, NY 10451 Attorney for Subject Children, Jessica Linda, Esq., The Legal Aid Society, Juvenile Rights Practice, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451
Attorney for Petitioner, By: Jessica Guilbeault, Esq., Administration for Children's Services, Family Court Legal Services, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451
Attorney for Respondent Father J.S., By: Davis Vinckier, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, NY 10451
Attorney for Non-Respondent Mother I.F.H., By: Paul Sweeney, Esq.910 Grand Concourse, Suite 1C, Bronx, NY 10451
Attorney for Subject Children, Jessica Linda, Esq., The Legal Aid Society, Juvenile Rights Practice, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451
Ronna H. Gordon-Galchus, J.
On August 10, 2022, the Administration for Children's Services (hereinafter "ACS") filed a neglect petition against J.S, the respondent father (hereinafter "RF"). The petition alleged RF neglected the subject children in that the child J.b. S. tested positive for fentanyl and was hospitalized while in the care of RF. A fact-finding hearing was held on December 19, 2022; February 27, 2023; March 16, 2023; April 18, 2023; May 22, 2023; and July 26, 2023. On July 27, 2023, counsel agreed to written summations and the case was adjourned to September 20, 2023 for decision. The RF presented no independent witnesses or evidence, having testified on ACS’ direct case. The attorney for the children presented no witnesses or evidence and did not support a finding of neglect.
Witness Testimony
CPS K.A.
CPS A. testified on December 19, 2022. He testified that he was assigned the case on July 25, 2022. He testified that he spoke to RF, who indicated that on the date of the incident he arrived at the home of the non-respondent mother, Ms. I.F.H. (hereinafter "NRM") to care for the children while she went to work. CPS A. testified that RF informed him that he regularly cares for the children when NRM goes to work. CPS A. testified that RF informed him that he arrived at NRM's home around 7 or 8 a.m. CPS A. testified that RF reported that he laid down with SC J.b. S. and around 10:30am, J.b. S. left the bedroom and went to the living room. RF reported that approximately five minutes later, the maternal grandfather came into the room and said something was wrong with J.b. S. CPS A. reported that RF said J.b. S. seemed very tired and he eventually called 911. RF reported to CPS A. that he had a dental procedure the day before and was prescribed medication, but only brought "amoxicillin when he went to care for the children." (12.19.22, p. 13, 24-25). In a subsequent conversation on July 27, 2022, RF reported to CPS A. that he had been treated with fentanyl and another drug during his dental procedure. (Id. p. 14, 24). RF told CPS A. that his only explanation for J.b. S. testing positive for fentanyl is that "could have kissed the child and that's how the child possibly could have tested positive for fentanyl." (Id. p. 17, 23-24). CPS A. testified that RF went to the dentist on July 21, 2022 and RF cared for the children on July 22, 2022 (Id. p.15, 15-18). On cross examination, CPS A. testified that RF told him that when he arrived at the home, J.b. S. was acting normally and he had just been fed. (Id. p. 19, 5-8). He testified that he observed the home and that the living room is close to the only bedroom in the apartment, "maybe less than 10 feet." (Id. p. 29, 6-7). CPS A. testified that he asked RF, NRM, and the maternal grandfather to submit to drug screens. He indicated that NRM and the grandfather submitted, but the RF waited one week before submitting to a test. On re-direct, CPS A. reported that RF revised his original comments about whether the amoxicillin was within reach of the children in a subsequent conversation, saying that "now that I think about it, his amoxicillin was open and there was a pill next to his bottle." (Id. p. 33, 10-17). The bottle was on a nightstand, within reach of the child. (Id. ).
RF J.S.
ACS called RF to testify on its direct case on February 27 and March 16, 2023. RF testified that he is the father of both children, J.b. S. and J.e. S., aged two and four. RF testified that he went to the home of the NRM at about 8:30 am on July 22, 2022. He testified that he, the maternal grandfather, and the two children were in the home and that the NRM left at about 9:00 am. RF testified that he was sleeping, and the grandfather came and woke him up about two hours later. (02.27.23, p. 18, 16-18). He denied telling anyone that J.b. S. had woken up around 10:30 am and then later clarified that "it was like 10 in the morning." (Id. p. 19, 3). RF testified that he was taking antibiotics when he went to care for J.b. S. on July 22, 2022 and that he brought it to the NRM's home on that date. (03.16.23, p. 12, 1-7). He testified he put that medication on a shelf, about four and a half feet high. (Id. at 13, 9-11). He confirmed that he did see the pill bottle was open. (Id. 21-22). When asked what other substances he brought to the home that day, he stated "that one because I don't use anything else." (Id. at 15, 3). RF testified that he received fentanyl as part of a dental procedure intravenously but did not take any home. He denied knowing how J.b. S. encountered fentanyl. He testified that J.b. S. spent two weeks in the hospital and that he visited daily but denied speaking to the doctors independently. (Id. p. 21-22, 3-2).
On cross examination, RF testified that during the summer of 2022, he generally went to NRM's apartment to watch the children while she went to work. RF testified that both SCs were asleep when he arrived at NRM's home on the date of the incident and he observed that J.b. S. appeared normal. RF testified that at some point, J.b. S. woke up and he helped J.b. S. get off the bed. J.b. S. still appeared normal at that time. RF testified that J.b. S. often went to play with the maternal grandfather when he woke up. He testified that he believed he was asleep for about another two hours, but was not sure, as he did not look at the clock. (Id. p. 30-31). He testified that the MGF came and woke him up, he went out to check on J.b. S., did not see anything wrong, and went back into the room. He testified that after some more time, he went back out and saw that SC did not look well and that was when he made several calls, culminating in calling 911. RF testified that he was not ill that day physically, but he was very scared for the child. (Id. p. 40, 15-19). He denied ever using opiates in his life, outside of the dental appointment. (Id. p. 42, 18-20).
NRM I.F.H.
NRM I.F.H. testified on March 16 and April 18, 2023. She testified that she and RF have two children together and that he is the father of J.b. S. and J.e. S. NRM testified that RF arrived at her home around 9:00 am on July 22, 2022. She testified that SC J.b. S. usually wakes up, drinks milk, and then goes back to sleep. (Id. p. 51, 23-25). She testified that he followed that routine on July 22, 2022 and that he was acting normal that morning. J.b. S. was already asleep when RF got to the home on July 22, 2022. (Id. p. 53, 9-17). NRM denied having any drugs in her home, saying "I don't use drugs. And in my home there has never been any kind of drugs." (Id. p. 54, 3-4). NRM testified that the maternal grandfather was residing with her at the time, and he had been there for about a year at the time this incident occurred. She denied that the maternal grandfather uses drugs, including over the counter medication, and testified that she only has over the counter drugs in the home. She denied knowing what fentanyl was, saying she only learned after what happened to J.b. S. (Id. p. 56, 13-17). She testified that she arrived at work at 10:00 am that day and that RF called her around an hour later via FaceTime and told her that J.b. S. was not well. NRM testified that she observed that J.b. S. "was scared" and that she could see J.b. S. "closing and opening his eyes, and he was touching the boy's body to see if he would react." (Id. p. 58, p. 2-5). NRM testified that she left work and went home, where she saw EMS treating J.b. S. She testified that "he didn't look good" he looked "far away. He didn't respond." (04.18.23, p. 10, 7-10).
On cross examination, NRM testified that she resides in a one-bedroom apartment and the children sleep in her room. The maternal grandfather sleeps in the living room, which is divided into the bedroom and living room. The children have been observed to go into the maternal grandfather's room. NRM denied that RF uses drugs. She denied that RF appeared under the influence when he arrived at the home and denied that he keeps any personal possessions in the home. She testified that when she arrived at the home, RF was upset and crying, but he did not appear under the influence. NRM testified that sometimes the maternal grandfather would take J.b. S. for walks around the building and that she has observed that people in the building use drugs. She testified that the super or handyman put out poison for the roaches on July 22, 2022, but she doesn't remember what time they came. She indicated that she told CPS A. that she had Percocet, but upon further review, she had thrown it away prior to July 22, 2022.
Maternal Grandfather Mr. F.G. (hereinafter "MGF")
MGF testified on May 22, 2023. He testified that he lives with NRM and the SCs and has been residing with them for one year. He testified that he does not recall July 22, 2022 very well but admits that he saw J.b. S. that morning. He testified "I went to give him his milk, and I saw he was a little sick. So, I called his father, then he came to take care of him." (05.22.23, p. 13, 19-21). MGF testified that J.b. S. looked sick after RF arrived (Id. p. 14, 8-15). He denied giving J.b. S. anything to eat or drink that day. He denied that J.b. S. left the apartment that morning as far as he was aware. He denied taking any medication and denies knowing what happened to J.b. S. MGF testified that "when he (J.b. S.) came towards where I (MGF) was, and I went to give him the milk and I saw him trembling, and I called the father right away." (Id. p. 17, 1-3).
On cross examination, MGF confirmed NRM's description of the home. He denied that the children play in his bedroom. He denied knowledge of RF using opiates or drugs or prescription medication. He denied seeing RF under the influence. He testified that he woke up at 8:30 am and that NRM had already left. MGF testified that when he woke up, he observed J.b. S. playing and was concerned that he was trembling. He testified that it was not unusual for J.b. S. to be playing in the living room while RF was sleeping. He denied taking J.b. S. for walks around the apartment building. MGF denied seeing needles, rolling papers, or pills in the building, but also admitted he does not often go out. (Id. p. 29, 10-18). He denied that the superintendent or repairman came to the apartment on July 22, 2022. He denied using medication or pills, saying he does not like them.
Dr. N.R.
Dr. N.R. testified on July 26, 2023. On consent, Dr. N.R. was qualified as an expert in pediatric medicine. Dr. N.R. testified that he is board certified in pediatric hospital medicine, which means that he is a "pediatrician that specializes in the care of hospitalized children, from newborn period to age 21 years of age." (07.26.23, p. 7, 6-8). He testified that he was the pediatric attending at J.b. S.i Hospital in charge of the child J.b. S.’s care when he was transferred to general pediatric inpatient floor. Dr. N.R. testified that J.b. S.’s symptoms were consistent with opioid overdose, so he was "given a dose of naloxone" and subsequent "continuous intravenous dose of the naloxone for twenty-four hours." (Id. p. 8-9, 19-5). Dr. N.R. testified that receipt of the naloxone was "a lifesaving treatment for him because it reversed the effects of the potential opioid ingestion." (Id. p. 9, 21-24). He testified that "if J.b. S. had not received naloxone, there was a potential for him going into cardiorespiratory arrest it was potentially a lifesaving treatment." (Id. p. 10, 3-9). He testified that the lab test confirmed that J.b. S. tested positive for fentanyl. Although Dr. N.R. could not quantify the amount of fentanyl J.b. S. imbibed, he did opine that J.b. S. was "give a dose that was well above [what was] indicated for his age and weight." (Id. p. 12, 1-2).
Dr. N.R. indicated that based on the quick-acting nature of fentanyl, the drug would have to have been imbibed within the prior 3.7 hours to cause the symptoms seen by J.b. S.i n the hospital at 12:42 pm. (Id. p. 13, 1-7). He clarified that "in all likelihood it had been less than that because it is a very fact acting "analgesic and sedative." (Id. at 12-14). Dr. N.R. denied that fentanyl could have been passed to J.b. S. by someone kissing him. Dr. N.R. testified that fentanyl would only be given to children in a controlled substance, in a situation where they are receiving surgery. He testified that the administration of fentanyl needs to be monitored closely as it is a "very potent analgesic and sedative."
On cross examination, Dr. N.R. testified that fentanyl can be ingested and inhaled but cannot really be absorbed through skin contact. (Id. p. 18-19). He confirmed that he was aware that the RF, NRM, and MGF were all in the home with J.b. S. that morning, based on conversations with the NRM. Dr. N.R. confirmed that he cannot confirm who introduced fentanyl to J.b. S.
Documentary Evidence
Petitioner's 1 is the Oral Report Transmittal (hereinafter "ORT"). It was admitted into evidence on December 19, 2022.
Petitioner's 2 are SC J.b. S.’s certified and delegated medical records from J.b. S.i Hospital and were admitted into evidence on December 19, 2022. The records indicate that J.b. S. arrived on July 22, 2022 at 1:12 pm and discharged on July 27, 2022. The initial diagnosis was "ingestion of an unknown drug." The records note that SC had "respiratory distress" and "poor respiratory effort required frequent stimulation, coarse breath sounds throughout." Pet. 2, p. 17. He was described as "very drowsy appearing, minimally responsive to stimulation, with poor respiratory effect with significant amount of oral secretion/gurgling sounds." Id.Narcan was administered, and it was noted that "patient is more alert and responsive after Narcan, breathing efforts improved, remains on cardiac monitor." Id. p. 19. Blood and urine were both taken from J.b. S. and drug tested; he tested positive for fentanyl. Id. p. 122.
Petitioner's 3 are the certified and delegated EMS FDNY Records for SC J.b. S. They were admitted into evidence on December 19, 2022. Per the records, the 911 call was received at 12:44 pm on July 22, 2022. EMS arrived on scene at 12:49 pm and made contact with J.b. S. about 20 seconds later at 12:50 pm. They left the scene at 1:01pm for the hospital. The suspected reason was "cardiac arrest" and "altered mental state." Pet. 3, p. 6. The records describe SC as "hot to the touch had a fixated eye gaze to the right side and was only responsive to painful stimuli." Id. at 7.
Petitioner's 4 is a 911 tape, that was admitted into evidence on consent on March 16, 2023. It was played on the record. The call documents RF calling 911, saying "the baby don't want to wake up."
Petitioner's 5 is the certified and delegated records from Poison Control for the subject child, J.b. S. They were admitted into evidence on April 18, 2023. RF raised an objection through his counsel about the time between the timing of the certification and delegation, arguing that it should go to the weight the Court gives the records.
Petitioner's 6 is Dr. N.R.’s Curriculum Vitae (hereinafter "CV").
Legal Analysis
As a preliminary matter, the Court finds by a preponderance of the evidence that the children are minors under the age of eighteen and that RF is the father of both children. This was testified to by both RF and NRM and no jurisdictional concerns were raised during the hearing.
Pursuant to FCA 1012(f), a neglected child is a child less than eighteen years of age "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 or other person legally responsible for his care to exercise a minimum degree of care." Under that section, the presenting agency can sustain a finding of neglect for misusing drugs or alcohol when there is proof that the parent or person legally responsible loses self-control of their actions unless there is evidence that a parent is voluntarily and regularly participating in a rehabilitation program. It is thus clear that the legislature takes the substance misuse of a parent seriously. It stands to reason then that a child testing positive for such a substance would also be of serious concern to the legislature.
Courts have consistently held that positive toxicology in children, combined with other factors in the record are consistent to sustain a finding of neglect. Nassau County Dep't of Social Servs. ex rel. Dante M. v. Denise J. , 87 N.Y.2d 73, 637 N.Y.S.2d 666, 661 N.E.2d 138 (1995). The positive toxicology is often paired with a showing that the child suffered harm, such as withdrawal or a hospital stay to recover from the effects of the drug, which is sufficient to establish neglect against the parent or caretaker. Matter of Thamel J. (Deryck T.J.) , 162 A.D.3d 507, 76 N.Y.S.3d 56 (1st Dept. 2018). Furthermore, case law is clear that a finding of neglect is appropriate when there is a "failure to properly supervise by unreasonably allowing harm to be inflicted upon a child." Matter of Erica B. v. Quentin B. , 79 A.D.3d 415, 912 N.Y.S.2d 195 (1st Dept. 2010) ; In re Alena O. , 220 A.D.2d 358, 633 N.Y.S.2d 127 (1st Dept. 1995) ; In re Kayla PP. , 204 A.D.2d 769, 611 N.Y.S.2d 687 (3d Dept. 1994). Here, J.b. S. tested positive for fentanyl and required hospitalization. Dr. N.R. testified about the lethal consequences which fentanyl causes and the record is abundantly clear that J.b. S. required lifesaving treatment to reverse the effects from the fentanyl ingestion. This clearly is a harm sufficient to sustain neglect. Thus, as RF and AFC argue, there must be a showing that this was caused by the failure of his parent or person legally responsible to exercise a minimum degree of care.
Res Ipsa Loquitar is Latin for "the thing speaks for itself."
The Family Court Act has incorporated the res ipsa loquitar definition into its definition of child abuse and neglect. Pursuant to FCA 1046(a)(ii) the petitioner has met a prima facie case of child abuse or neglect by demonstrating that (1) an injury occurred to a child which would ordinarily not occur absent an act or omission of the respondents and (2) that the respondents were the caretakers of the child at the time the injury occurred.
When analyzing the rationale for applying the res ipsa doctrine to child abuse and neglect cases, it should be noted that the purpose of Article 10 is to protect children, as many of these cases are secretive in nature and the only witness may be the child. See In re Nicole V. , 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914 (1987). As held in Nicole V ., the Child Protective Procedure's Act (Article 10), "purpose is to protect children from injury or mistreatment while ensuring that the State's intervention on behalf of the child, against the wishes of a parent, comports with the parent's due process rights." Nicole at 117, 524 N.Y.S.2d 19, 518 N.E.2d 914. This Court also notes that when ACS files a petition under the theory of res ipsa, there is nothing specifically pleaded in the petition to state that they are proceeding on such a theory.
In Re Philip M. 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168 (1993) is the seminal authority when applying the doctrine of "res ipsa" to Article 10 cases. In Philip M. , the Court did not relieve the Petitioner from meeting its burden of proof by a preponderance of the evidence. However, "as in negligence cases tried on the theory of res ipsa loquitor, once the petitioner puts forth a prima facie case, "the burden of going forward shifts to respondents to rebut the evidence of parental culpability." Philip M. at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168. The Court of Appeals specifically held that the respondent could rest without rebutting the case and permit the court to decide the case on the strength of petitioner's evidence. However, if respondent does rebut the prima facie case, they may do so by 1) establishing that the child was not in their care at the time of the incident, 2) demonstrating that the injury could reasonably have occurred accidentally, without the acts or omissions of the respondent or 3) countering the evidence that the child had the condition which was the basis for the finding of the injury. See Philip M. at 244-45, 604 N.Y.S.2d 40, 624 N.E.2d 168. The Court in Philip M . upheld the finding and rejected the respondent's testimony which it held as "conjecture" and without an explanation for how the injury occurred. The Court held that the parents failed to prove that one of the children's injuries had another source. The testimony proffered by the respondents was implausible and the Court properly rejected their explanation.
The very nature of FCA 1046(a)(ii) acknowledges that courts may not know who caused injuries to a child, and thereby multiple caretakers who had access to the child may be responsible. See Matter of Adonis M.C. (Breanna V.M.) , 212 A.D.3d 452, 181 N.Y.S.3d 246 (1st Dept. 2023) ; Matter of Nyheem E. (Jamila G.) , 134 A.D.3d 517, 23 N.Y.S.3d 9 (1st Dept. 2015). If respondents are unable to narrow the timeline or rebut that they were a caretaker for the child during the relevant time, even if the timeline is broad, then findings are appropriate. Matter of Nabel C. , 134 A.D.3d 504, 23 N.Y.S.3d 8 (1st Dept. 2015) ; Matter of Davion E., supra. In Matter of Nabel C , the Court upheld a finding of abuse where the child suffered from an opiate overdose and the exact time of the overdose could not be established. The respondents were not able to show that that the exposure occurred when the child was not in their care and thus the finding of abuse was appropriate.
In addition, a finding against one parent does not preclude a finding against another parent. In Adonis M. , supra, a four-month-old child had multiple non-accidental fractures. Although the Court had previously entered an abuse finding against the father, this did not prevent the mother from also being responsible. "The Family Court Act permits findings of parental culpability against more than one caretaker where, as here, multiple individuals had access to the child in the period when the injury occurred." Adonis M. at 453, 181 N.Y.S.3d 246.
When reviewing evidence and evaluating witnesses, Courts are required to make credibility determinations. Credibility determinations are within the sole discretion of the trial court, as the jurist who observes the demeanor of the witnesses is in the best position to determine their credibility. Specifically, the Court of Appeals has noted "in a matter which turns almost entirely on assessments of the credibility of the witnesses and particularly on the assessment of the character and temperament of the parent, the findings of the nisi prius court must be accorded the greatest respect." In re Irene O. , 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337 (1975). See also Matter of Elissa A. v. Samuel B. , 123 A.D.3d 638, 999 N.Y.S.2d 76 (1st Dept. 2014) ; Matter of Oscar S. v. Joyesha J. , 149 A.D.3d 439, 52 N.Y.S.3d 28 (1st Dept. 2017). A Court's credibility determination must be supported by the evidence. Matter of Gargano v. New York State Office of Children and Family Services , 133 A.D.3d 556, 19 N.Y.S.3d 418 (1st Dept. 2015).
The Court had the opportunity to review all the documentary evidence in this matter and observe the demeanor of the witnesses during their testimony. Here, the Court credits the testimony of CPS A. and Dr. N.R. These witnesses were both impartial and informed the Court when they did not remember something. The RF, NRM, and MGF were all partially credible, but their testimony was also self-serving. While they all provided information to this Court, the Court also found inconsistencies in all their testimony and even after all the testimony and evidence, does not have a complete timeline as to the movements of each adult on the morning of July 22, 2022.
Here, the agency has made a prima facie case of neglect as described in Philip M and a prima facie case that the child's physical, mental, and emotional condition were impaired. The subject child tested positive for fentanyl, which is an injury that would not ordinarily occur. Dr. N.R. testified that this was a potentially life-threatening injury and would have been fatal if he had not received the naloxone. The records demonstrate that J.b. S. was hospitalized for five days because of his exposure to fentanyl. There was no evidence or argument proffered to rebut these facts as established by ACS.
The testimony clearly establishes that the RF was a caretaker for J.b. S. at the time that he encountered the fentanyl. The RF specifically went to NRM's to care for the children, a routine he frequently exercised. RF did not go the NRM's home to find another location to sleep, but rather to be a caretaker for his children. Dr. N.R. set a timeline of 3.7 hours before 12.42 pm, which has the timeline starting approximately at 9:00 am on July 22, 2022, when the RF either arrived in the home or was already in the home. However, Dr. N.R. did stress that the exposure was likely later than that, given J.b. S.’s presentation at J.b. S.i Hospital. Therefore, this Court makes a prima facie finding that RF was a caretaker at the time J.b. S. was exposed. With this presumption, now it falls to the RF to rebut that presumption.
This Court notes that RF seemingly argues that the timeline should begin at 10:00am, approximately 3.7 hours prior to his hospital admission. See Respondent Summation, pg. 10. However, on direct examination, ACS specifically asked the doctor for the timeline pursuant to the 911 call being made, setting that time at approximately 12:41 pm. Although Dr. N.R. reiterated that timeline later in his testimony when asked about exposure pursuant to his arrival at the hospital, this Court sets the timeline from the 911 call. Clearly the child was exposed to the fentanyl prior to the RF calling 911 and the original range was set by the doctor when asked about symptoms being present at the time EMS was called.
RF argues that J.b. S. was in the care of MGF during the time he was exposed to the fentanyl and further argues that he had no control over the environment in which J.b. S. was exposed, which implicates the NRM. As noted above, despite all the evidence and testimony presented, the movements and actions of the three adults throughout that morning are not clear. It is not clear when J.b. S. was exposed and what room he was in when he was exposed. This Court notes that RF attempted to directly point the finger at MGF with his testimony about being awoken by the MGF due to concerns, seeing the child fine, going back to sleep and then waking up later to check again. However, this stands in contrast to his statements to CPS A. and the testimony of MGF. Furthermore, it is clear to this Court that RF loves J.b. S. This Court simply does not credit that RF would have been informed that J.b. S. was in distress, taken a brief look at the child, and gone back to sleep for an indeterminate amount of time, based on his other statements during this trial. It is also clear that it is routine for RF to be in the home. Despite the testimony that he does not live there, his daily visits to the home for a prolonged period while a caretaker for the children, do in fact give him some control over the home. This record is exceedingly clear that RF went to the NRM's home for the purpose of caring for the children. The children were in his care that day, and to suggest otherwise belies the evidence brought out at this trial. Therefore, the Court does not find those arguments persuasive. The Court also notes that it is concerning that RF was comfortable leaving the children in the possible care of the MGF, when there is a consensus that he has health issues, which could impact his ability to care for young children.
Thus, the totality of the evidence presented does not exclude the RF as a possible caretaker for the child at the time that J.b. S. ingested the fentanyl. RF did not offer an expert to narrow down the timeline further than the 3.7 hours proffered by Dr. N.R. Therefore, this Court finds that the presumption was not rebutted. The AFC did not support a finding and argued that "the record contains no specific facts supporting an inference that J.b. S. was harmed or placed at imminent risk of harm as a result of RF's conduct." The AFC fails to reference the doctrine of res ipsa and Family Court Act 1046(a)(ii) but rather speculates that J.b. S. may have ingested fentanyl when unattended in the living room. However, the AFC does support the decision in In re Nabel C. , 134 A.D.3d 504, 23 N.Y.S.3d 8 (1st Dept. 2015), a case where a finding was upheld and where the facts were quite similar to the instant matter.
Moreover, the RF's argument that any theory under FCA 1046(a)(ii) may not be advanced because the petitioner would have had to file against all the parties who were present at the time the injuries were sustained is not persuasive. No case law is cited to support that proposition, and the Court did not find any in its own research. Furthermore, the Court believes that such a holding would be counterintuitive and would only serve to undercut the purpose of res ipsa. Should the Court truly not extend its protective arm around a child(ren) who were allegedly harmed because there may exist another individual who had access to the child? Should the existence of such an individual (say someone who was present, but could not be proven to be a person legally responsible) automatically exculpate the parents and persons legally responsible? Res ipsa serves to protect children. The law provides defenses to res ipsa, as discussed above, but this Court finds that those defenses were not successfully presented in this instance.
Clearly both RF and AFC are quite concerned that ACS did not file against the NRM or the maternal grandfather. However, this Court is constrained by what ACS has filed, wherein the father was the only named respondent. Therefore, this Court does not reach a determination as to whether the NRM or the MGF were caretakers at the time and whether findings of neglect would be appropriate. As cited above, the existence of other caretakers, without narrowing down the timeline sufficiently to exclude himself as a caretaker, allows for the finding of neglect to be made against the father.
At the time of the incident, J.b. S. was about 19 months old and had no protective capacity of his own. He suffered from a fentanyl overdose which could have resulted in his death if not for the medical intervention he received. The respondent offered no evidence to rebut the petitioner's prima facie case.
Although this was not specifically pleaded, the Court finds that the child J.e. S. is a neglected child based on the actions of RF. J.e. S. was in the same circumstances as her brother when he absorbed the fentanyl, placing her at direct risk and the same parental flaw that justifies the finding of neglect for J.b. S. justifies a finding for J.e. S.
Conclusion
WHEREFORE, the Court finds that Petitioner has established by a preponderance of the evidence that the respondent is the father of the children, that the child has injuries of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent, and that RF was a caretaker for SC when the injury may have occurred. RF failed to rebut the Petitioner's presumption of neglect. Therefore, under FCA 1046(a)(ii) and Matter of Philip M. 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168 (1993), the subject children are neglected children as defined in section 1012(f) of the Family Court Act. Accordingly, a finding of neglect is entered against the respondent father pursuant to section 1012 of the Family Court Act.