Matter of Asazje H. (Nakaya H.)
Annotate this CaseDecided on November 20, 2014
Family Court, Kings County
In the Matter of a Proceeding Under Article 10 of the Family Court Act, Asazje H., Child Under Eighteen Years of Age Alleged to be Neglected by Nakaya H., Respondent.
NNXXXX/14
Jennifer Sadaka, Esq., Attorney for Petitioner, Administration for Children's Services
Michelle Noah, Esq., Attorney for the Child, The Legal Aid Society, Juvenile Rights Practice
Lillian Wan, J.
In this Article 10 proceeding, the court finds that the Administration for Children's Services (ACS) has failed to meet its burden of proof that the subject child is neglected pursuant to Family Court Act §1012.
The instant neglect petition was filed on February 7, 2014 alleging that the respondent mother fails to provide the subject child, age 4, with adequate medical care and that the respondent mother fails to provide the child with proper supervision and guardianship including leaving the child in the care of an inappropriate caretaker. On the initial filing date, ACS reported that the respondent mother and child's whereabouts were unknown. A stayed warrant was issued for the mother to produce the child, and the child was remanded to ACS. The matter was adjourned for service. Thereafter, the matter was calendared approximately 13 times over the course of 7 months for ACS to obtain jurisdiction over the mother and to locate the child. ACS was never able to locate the respondent mother or the subject child. On September 24, 2014, the court authorized substituted service on the respondent mother. On November 20, 2014, ACS submitted an affidavit of service on the respondent mother and the case proceeded to inquest.
ACS presented only the testimony of the ACS caseworker, a one page progress note and the oral report transmittal (ORT) dated 11/19/13. The information contained in the narrative of the ORT is hearsay and does not establish inadequate guardianship. See Matter of Imani O., 91 AD3d 466 (2nd Dep't 2012). ACS did not present any medical proof of the child's alleged medical condition. No medical records were introduced into evidence. There is also no proof as to how the alleged medical condition should be treated. There is no proof about whether the [*2]child requires medication, or how often the child needs the medication, or how often the child needs to see a doctor, or if he needs to see a doctor at all. The respondent mother's statements that the child has chronic heart disease, breathing problems, and asthma and that the child last saw a pulmonologist and cardiologist in Florida in June 2012, without anything more, does not establish that the mother is neglecting the child's medical needs. There is no evidence that the child was required to see these doctors after June 2012.
The agency has also failed to establish that the respondent mother leaves the child in the care of an inappropriate caretaker, namely the non-respondent father who is confined to a wheelchair. The progress note in evidence contains a conversation that a caseworker had with the respondent mother on December 2, 2013. The caseworker stated that there is a concern that the father is not able to care for the child due to his declining health. The mother then told the caseworker that she is currently on leave from her job at this time and is currently in the home. The mother further stated that she is in the process of moving out of the home with her son into another apartment. This does not establish improper guardianship and supervision.
While the court is entitled to draw the strongest negative inference against the respondent mother for her failure to testify in these proceedings, the strongest negative inference cannot provide a missing element of proof. Matter of Kayla F., 39 AD3d 983 (3rd Dep't 2007); Matter of Janiyah T., 26 Misc 3d 1208(A) (Kings County Family Court 2010).
Even if the court was to find that there are facts sufficient to sustain the petition, which it does not, the court would conclude that its aid is not required on the record before the court pursuant to Family Court Act §1051(c). The caseworker testified that no one from ACS has seen the mother or the child since approximately December 2013. In the 9 months that this Article 10 case has been pending before the court, ACS has not been able to ascertain the whereabouts of the mother or the child. The child is not, and has never been, in the physical care of ACS. ACS is not providing any services to the mother or the child. ACS has failed to articulate how the aid of this court is necessary. The caseworker testified that even if this court was to enter a finding of neglect, ACS would not know what services to ask this court to order. Furthermore, a dismissal of the petition is supported by the attorney for the child. Accordingly, the petition is dismissed.
Dated: November 20, 2014
______________________________
Hon. Lillian Wan, JFC
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
