Matter of Curstin B. (Curtis B.)

[*1] Matter of Curstin B. (Curtis B.) 2022 NY Slip Op 51388(U) Decided on December 23, 2022 Family Court, Kings County Deane, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2022
Family Court, Kings County

In the Matter of Curstin B. CADENCE B.,
Children Under Eighteen Years of Age
Abused and/or Neglected by CURTIS B., Respondent.



Docket Nos. NN-XXXXX-XX/21


Tamara Louis-Jacques, Esq.
Administration for Children's Services
Family Court Legal Services
For the Petitioner

Jordan Burnett, Esq.
Brooklyn Defender Services
Family Defense Practice
For the Respondent

Stephanie Shapiro Marden, Esq.
Legal Aid Society
Juvenile Rights Practice
For the Children

Christopher Keating, Esq.
16 Court Street, Suite 2402
Brooklyn, NY 11242
For the Non-Respondent Parent Jacqueline B. Deane, J.

Procedural & Factual History

This proceeding began with the filing of a neglect petition on October 26, 2021, against the Respondent father, Mr. B, pursuant to Article 10 of the Family Court Act, alleging that he neglected his two daughters, Curstin, age 10 at the time, and Cadence, age 7.

This fact-finding hearing commenced on September 9, 2022 and concluded on November 30th. Petitioner Administration for Children's Services ("Petitioner" or "ACS") called Caseworker Marsh who responded to an oral report transmittal ("ORT") and interviewed both subject children and the Respondent father. Mr. B testified on his own behalf. The Attorney for the Children ("AFC") rested without introducing any evidence. Counsel then made their summations, and this Court reserved decision.

The Court has reviewed the medical records of the two children placed in evidence and considered the credibility of the two witnesses. The records show that the girls suffered some neck and back pain from the car accident.

The Petitioner's case at trial consisted entirely of out-of-court statements allegedly made by the subject children to the ACS caseworker, admitted pursuant to FCA § 1046(a)(vi), which were allegedly corroborated by the medical records in evidence. The Respondent's case, in contrast, consisted of his first-hand account of the events, and the Court found him credible.

Legal Analysis

In order to make a neglect finding, ACS must prove by a preponderance of the evidence that (1) that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the subject child with proper supervision or guardianship. See Family Ct. Act § § 1012(f)(i)(B), 1046(b)(1); Matter of Afton C., 17 NY3d 1 (2011); In re Kiana M.-M., 123 AD3d 720, 721 [2d Dept 2014].

Petitioner's argument regarding the "inadequate supervision" here was originally based on several components related to the car accident that occurred on October 16, 2021, when Mr. B was driving with his two children, who were in the backseat. ACS's claims included that Mr. B was under the influence of alcohol and driving fast and that Curstin, age 11, who was not wearing a seatbelt, hit her head, yet Mr. B did not take her for any medical attention.

The only complete account of the accident was supplied by Mr. B in his testimony which the Court found to be, overall, very credible. Mr. B conceded that he had an accident that day coming off the Pulaski Bridge when a car abruptly cut to the right in front of him, cutting him off. This led to the Respondent's car hitting the rear of that car, and the car behind Mr. B's running into his. The three cars then pulled over into a nearby gas station, and the drivers got out to inspect their cars, only one of which was damaged. Mr. B assisted in repairing that woman's bumper, and the driver of the first car apologized for causing the accident, and all three drove [*2]off. No one called the police, and no one seemed to need any medical attention. Mr. B described it as "minor." Mr. B testified that he checked on the two children, who said they were fine immediately after the accident and did not observe any injury on them. Rather, they were talking excitedly about the accident. He did not realize that Curstin had her seatbelt off, as the girls travel regularly in his car, which they even have a nickname for, and they have a routine of him telling them to "buckle up" when they get into the car, which he believed they follow. Mr. B did acknowledge that he did not double check to see if their seatbelts were on, and he did not check in to see how they were feeling later that evening when back at his house, although they showed no change in their behavior.

The evidence at fact-finding was insufficient to establish by a preponderance that Mr. B was under the influence of alcohol. Mr. B stated repeatedly to the caseworker and re-iterated on the stand that he did not have any alcohol to drink and that there was none served at the party which was to celebrate a 3-year-old's birthday. The girls' statements to the caseworker were equivocal, Cadence saying their father had something to drink at the party, but she did not know what. Additionally, the Court credits that Mr. B believed the girls had their seatbelts on and that, while he should have double-checked, that failure alone does not rise to the level of neglect given their usual routine and their ages. The Court also believes Mr. B's account that he pulled over along with the other cars involved to assess the damage. The girls may not have known what was going on outside of the car at that point as they were talking excitedly after the accident. However, the Court does find that it was a failure of parental judgment not to check in with the girls over the next several hours as to how they were feeling and not to seek any medical attention for them. It is likely that. had Mr. B asked more questions later on, Cadence may have expressed feeling "woozy and having a headache" as she told the caseworker, and he might have noticed Curstin's lip had been cut. This information may well have resulted in Mr. B's taking the children to the doctor. Rather, it seems the father chose to believe everything was fine despite the fact that the consequences of even a minor accident where a child hits their head on the back of a seat or suffers whiplash can be unseen and potentially serious. Thus, these circumstances were sufficient to "put an 'ordinarily prudent parent' on notice that medical attention was required." Matter of Samantha M., 56 AD3d 299, 300 (1st Dept. 2008).

After hearing summations at the close of the fact-finding hearing, this Court inquired of all counsel whether the aid of the Court was needed in this case even if there was a legal basis for a finding of neglect. ACS opposed dismissal on this basis, but the AFC supported it, as did the non-respondent mother.

FCA § 1051 relates generally to various circumstances where courts may sustain or dismiss an Article 10 petition. Section 1051(c) contains two circumstances in which petitions may be dismissed: (1) "if facts sufficient to sustain the petition are not established" or (2) "if, in a case of alleged neglect, the court concludes that its aid is not required on the record before it." Under either circumstance, the court "shall dismiss the petition and shall state on the record the grounds for dismissal." FCA § 1051(c). In this case, that record consisted of the entire fact-finding hearing in which both the mother and father testified, and letters written to the Court by the two oldest children, ages 14 and 12, were introduced, in addition to the two years of prior proceedings and orders which the Court could take judicial notice of. The plain language of the statute establishes that the existence of neglect is not a bar to dismissal under this second prong. The legislature's intent was clearly to preserve the rehabilitative purpose of Article 10 by acknowledging that, even where a parent may have made an error in judgment which constitutes [*3]neglect under the law, the mistake may have been an isolated instance and/or the parent may have sufficiently learned from that mistake prior to the fact-finding hearing to the extent that further involvement of the court and the child welfare system is unnecessary. See In re Kayden H., 104 AD3d 764, 764 [2d Dept 2013] (although facts sufficient to sustain the petition were established, the incident on which the petition was based was an isolated one, that the mother and grandmother had been rehabilitated, and that the child was no longer at risk of being neglected); In re Eustace B., 76 AD3d 428, 428 [1st Dept 2010] (Court's aid not needed as the Court determined no basis for supervision or for respondent's participation in referrals, the domestic violence was an isolated incident and the relationship had ended); compare In re Naomi S., 87 AD3d 936, 937 [1st Dept 2011] (Family Court appropriately denied respondent's motion to dismiss "since the dangers the mother posed to the child had not passed and thus the court's continued aid was required"); Matter of RR, Docket No.NN-4134-6-19, Unpublished decision, Deane. J, dated February 1, 2021("continued ACS supervision and Court involvement will only serve to add stress to a family that has healed from the events that brought this case into court."); In re Kailynn I., 52 Misc 3d 740 [Fam Ct 2016] (dismissal of petitions was warranted as aid of court was not required since there was no likelihood of future neglect).

The record here establishes that Mr. B's error in judgment on October 16, 2021, in not taking the girls to the doctor after the car accident was not representative of his prior behavior as a father and, more importantly, has not been repeated. Rather, the evidence described an isolated instance in an otherwise close and healthy parent-child relationship. In the more than one year since this case was filed, Mr. B has visited regularly with his children with no safety concerns. Moreover, he and their mother have addressed some recent financial differences and found a way to amicably co-parent for the best interests of their children. Every parent makes mistakes at some point, and the Court believes that Mr. B has learned from this proceeding that, in the future, especially where a possible head injury is involved, he should err on the side of caution and seek medical attention for his children. Additionally, Ms. P has expressed for months that she finds the ACS over-sight involved in being a non-respondent parent in this case to be onerous and unhelpful at this point, and the Court had already limited ACS's supervision over her home on September 9th. When asked by the Court at the conclusion of summations, the mother and her counsel stated that she would support dismissal of this matter against the father as this was an isolated mistake, and he is a good father who the children enjoy spending time with, and she had no concerns about him having unsupervised visits.

After having reviewed this evidence as well as having had the unique opportunity to assess the credibility of the Respondent father, the Court holds that, while there are facts sufficient to establish a finding of neglect by a preponderance of the evidence regarding inadequate medical care, the Court's aid is not required under the current circumstances of the family and the petition is therefore dismissed with prejudice pursuant to Family Court Act § 1051(c).

Date: December 23, 2022
ENTER:

___________________________
Jacqueline B. Deane, JFC