Opinion
NN-XXXX-XX
05-31-2019
In the Matter of Zippirah N., A Child Under Eighteen Years of Age Alleged to be Neglected by Deva N., Respondent.
Laina Boris, Esq. appeared as counsel for the Administration for Children's Services, Jessica Prince, Esq., of the Bronx Defenders, appeared as counsel for the respondent-mother, Legal Aid Society, Juvenile Rights Practice by Holly Graham, Esq. appeared as counsel for the subject child.
Laina Boris, Esq. appeared as counsel for the Administration for Children's Services, Jessica Prince, Esq., of the Bronx Defenders, appeared as counsel for the respondent-mother, Legal Aid Society, Juvenile Rights Practice by Holly Graham, Esq. appeared as counsel for the subject child.
On May 22, 2019, an oral decision was issued dismissing the Article 10 proceeding against the respondent-mother, Deva N. (Ms. N. or respondent-mother), as to the child, Zippirah N. (Zippirah). A written decision is being issued to memorialize the court's finding that the presentment agency failed to establish a prima facie case of derivative neglect for the subject child, Zippirah.
PROCEDURAL HISTORY
On August 8, 2018, the Administration for Children's Services (ACS) commenced this proceeding with the filing of an Article 10 petition alleging that the subject child, Zippirah, is a derivatively neglected child based upon the prior findings of neglect entered against the respondent-mother on behalf of Zippirah's siblings, Michael N. (DOB X/XX/XXXX) (Michael), Gabriel N. (DOB X/XX/XX) (Gabriel) and Esther N. (DOB X/X/XX) (Esther). The petition further alleges that on or about June 6, 2018, Ms. N. tested positive for marijuana and that as a result of her failure to address the risk that the respondent mother's condition or behavior poses to the subject child's siblings, Zippirah, is a derivatively neglected child.
At the time of the filing of the petition, Zippirah, was remanded to the care and custody of ACS. After several court appearances, Ms. N. appeared in court on September 12, 2018. On this date, the Bronx Defenders was assigned to represent Ms. N. on the petition. Ms. N. accepted service of the petition and issue was joined. A fact-finding hearing commenced on April 1, 2019. Ms. N. was not present, and her attorney did not participate in her absence. On May 22, 2019, the fact-finding continued, and Ms. N. arrived just prior to the conclusion of the fact-finding hearing. Ms. N.'s attorney did not participate in the continued hearing prior to Ms. N.'s arrival. At the close of the petitioner's case, the attorney for the child made a prima facie application for the dismissal of the neglect petition. The attorney for the respondent mother joined in the attorney for the child's application for dismissal. ACS opposed the application for dismissal, urging the court that in viewing the evidence in the light most favorable to the presentment agency, based on the respondent-mother's alleged failure to engage in services prior to the birth of the subject child, and that the prior findings of neglect were so proximate to the filing of this petition that a prima facie showing of neglect of Zippirah had been demonstrated.
The Court, viewing the evidence in a light most favorable to the presentment agency, found the testimonial evidence to be credible, but contradictory and lacking corroboration. Additionally, the documentary evidence failed to offer any more than this Court's entry of prior orders of fact-finding and disposition. This Court issued a stay of its order dismissing the petition until May 28, 2019 with a written decision to follow.
FACT- FINDING HEARING
At fact-finding, ACS called two witnesses, Child Protective Specialist (CPS) Tonia Johnson and the assigned Good Shepherd Foster Care Agency Case Planner, Malaika Omenih, (CP Omenih). ACS also entered the prior orders of fact-finding and disposition from September 29, 2015 on behalf of Michael and Gabriel under docket number NN-XXXX-XX/XX, the orders of fact-finding and disposition entered on August 21, 2017 on behalf of the subject children, Michael, Gabriel and Esther under docket numbers NN-XXXX-X/XX and the Oral Transmittal Report (ORT), dated August 3, 2018.
CPS Johnson testified that she met with Ms. N. and the maternal grandmother, Ms. M., at Lincoln Hospital on August 3, 2018. CPS Johnson went the hospital to assess the safety of the child, Zippirah, due to Ms. N. having other children in foster care at the time of Zippirah's birth. According to CPS Johnson, there were concerns regarding Ms. N.'s housing status; her substance use, lack of compliance with court orders, and the vulnerability of the child given her age and her inability to self-protect.
CP Omenih testified that she has known Ms. N. since February 2017, when Ms. N.'s children, Michael, Gabriel and Esther entered foster care. According to CP Omenih, Ms. N. was previously ordered to complete a parenting skills class, submit to random toxicology screens, complete a mental health evaluation, and engage in a substance abuse treatment program. CP Omenih explained that she initially referred Ms. N. to Montefiore and Vertex Counseling for substance abuse treatment. Ms. N. did not comply with these referrals. CP Omenih testified, however, that Ms. N.'s compliance changed when her older children were transferred to the foster home of their maternal grandmother in late June of 2017. Ms. N. enrolled herself in the Next Steps South drug treatment program in early July of 2017. CP Omenih referred Ms. N. for random toxicology screens beginning July 2017. Ms. Omenih testified that she was unsure of the total number of toxicology screens Ms. N. was referred to but recalled that the timeframe covered July 2017 through June 2018. During that period, Ms. N. may have tested positive five times for marijuana.
CP Omenih referred Ms. N. to a parenting skills class at the foster care agency. Ms. N. completed the Parenting Through Change parenting skills program at the foster care agency in July 2018. At the time of Zippirah's birth, Ms. N. was participating in and regularly attending the Next Steps program.
LEGAL ANALYSIS
Failure by ACS to establish a prima facie case (see Matter of Camara R. [Robert S.], 263 AD2d 710, 711 [3d Dept 1999]; Matter of Colleen CC., 232 AD2d 787, 789 [3d Dept 1996]) will cause dismissal of a neglect petition. In determining a motion to dismiss for failure to establish a prima facie case, the evidence "must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom . . .'" (Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2d Dept 2010], quoting Gonzalez v Gonzalez, 262 AD2d 281, 282 [2d Dept 1999]).
Family Court Act (FCA) § 1046 (a) states "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. The statute further states that any determination that a child is neglected must be based on a preponderance of the evidence and only evidence that is competent, material and relevant may be admitted at a fact-finding hearing (see FCA §§ 1046 (b)(i), 1046 (b)(iii). However, evidence of neglect of a later born child's sibling is not dispositive on the issue of whether the later born child is a derivatively neglected child (see Matter of Virginia T.F., 55 Misc 3d 936, 942 [Family Court, Queens County 2011] ["there is no per se rule dictating that a neglect finding of one sibling mandates a derivative finding as to that child's siblings."]. In fact, "such evidence standing alone, does not, necessarily constitute a prima facie case" (Matter of Cruz, 121 AD2d 901, 902 [1st Dept 1986]).
As part of its evaluative process, the Court must determine whether "taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for the finding of abuse or neglect as to one child is so proximate in time as to the derivative proceeding that it can reasonably be concluded that the condition still exists" (Id. at 902-903; see also Matter of Madison B., 123 AD3d 1027, 1027 [2d Dept 2014]; Matter of Emani, 31 Misc 3d 1232 [A], 2011 NY Slip Op 50963 [U] *1, 5 [Family Court, Bronx County 2011]). The presentment agency, ACS, must make the requisite showing, by a preponderance of the evidence, that a prima facie case of derivative neglect exists (see Matter of Virginia T.F., 55 Misc 3d at 941). If ACS proves that the conduct is proximate or that the respondent has failed to meaningfully address the circumstances leading to the prior findings of neglect, the condition will be presumed to presently exist and the "respondent will have the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the forseeable future" (Matter of Jeremiah I.W., 115 AD3d 967, 969 [2d Dept 2014]). That is, to say, simply because a parent's parental conduct has previously fallen below the minimum degree of care for a time does not mean that parent's parental ability or capacity is beyond repair.
The facts of this case are that Ms. N. has had two prior neglect findings on behalf of Zippirah's siblings. Notably, in each of the prior proceedings the Court's determination was made following an inquest. The 2015 findings entered on behalf of Michael and Gabriel was for educational neglect. The findings of neglect entered on behalf of Michael, Gabriel and Esther in 2017 stemmed from allegations of educational and medical neglect. The testimony before the Court, more than one year following the entry of the most recently issued dispositional orders in the 2017 proceedings, is that while experiencing some challenges along the way, Ms. N. began to comply with the dispositional orders previously entered in the 2017 proceedings more than one year prior to the birth of Zippirah.
Ms. N.'s prior findings of neglect were based upon educational and medical neglect. Those findings were entered one and two years prior to Zippirah's birth. ACS has made no showing here that these prior findings of neglect are so proximate in time to warrant a presumption that it is reasonable for this Court to presume an on-going condition of neglect exists. To the contrary, CP Omenih, testified that in late June of 2017, she noticed a significant change in Ms. N.'s compliance. Ms. N. complied with referrals for toxicology screenings, she self-referred to a substance abuse treatment program, and completed a parenting skills program offered by the foster care agency. Absent from the record is any admissible evidence corroborating claims that Ms. N. tested positive for any illicit substance during her pregnancy, immediately prior to Zippirah's birth or at the time of Zippirah's birth. Additionally, there is no evidence that Zippirah was born with a positive toxicology or that she was not an otherwise healthy baby at the time of her birth when the ORT was called into the State Central Registry. Also telling is the absence from the record that Ms. N. was referred for a mental health evaluation and failed to comply or that she was not regularly visiting with her older children. For the most part, a parent's past deficiencies alone have never been a sufficient basis upon which to enter a derivative finding of neglect.
In addition, the evidence presented at the hearing failed to establish that the conditions that led to the prior neglect adjudications currently exist and can be reasonably be expected to exist in the foreseeable future. The Court recognizes that when a parent fails to adequately address the circumstances leading to prior findings of neglect or demonstrates a manifestly flawed understanding of the duties of parenthood, a finding of derivative neglect may be appropriate on behalf of later born children (Matter of Annalise L., 170 AD3d 835, 837 [2d Dept 2019]). However, when a parent has sought to meaningfully tackle the challenges which led to the prior findings of neglect, has completed portions of the court-ordered service plan, and is participating in and complied with other portions of the service plan at the time of the later born child's birth, the Court lacks a sufficient basis to support a determination that the conditions which resulted in findings of neglect as to the later born child's siblings continue to exist. Indeed, neither CPS Johnson nor CP Omenih testified to any condition existing at that the time of Zippirah's birth which would lead to the conclusion that Zippirah was a derivatively neglected child or at risk of immediate harm. CPS Johnson's testimony as a whole, though credible, lacked any substance or detail.
CONCLUSION
After carefully evaluating the evidence introduced, as well as the relevant case and statutory law, the Court finds that the evidence was insufficient to support a prima facie finding that Zippirah is a derivatively neglected child. Accordingly, the petition is dismissed, and all prior orders are vacated. DATED: May 31, 2019 Bronx, New York
ENTER:
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HON. ALMA M. GÓMEZ, J.F.C.