Matter of Elizeo C.
Annotate this CaseDecided on December 20, 2007
Family Court, Kings County
In the Matter of Elizeo C.
Nancy C., Children Under the Age of Eighteen Alleged to be Neglected by Nancy R.
XX/07
APPEARANCES:
Anthony Demango, Esq.
Assistant Corporation Counsel
330 Jay Street 12th Floor
Brooklyn NY 11201
Patrick Garcia Esq., for Respondent Mother
26 Court St., Suite 2606
Brooklyn, New York 11201
Cathy Chen Esq., Law Guardian
Legal Aid Society
Juvenile Rights Project
111 Livingston St. 8th Floor
Brooklyn, New York 11201
Emily M. Olshansky, J.
The Administration for Children's Services (hereinafter, "ACS"), has moved for summary judgment against the respondent mother in the above child protective proceeding, asserting that there are no genuine issues of fact and requesting an order finding that the subject child Elizeo C is a neglected child and his sibling Nancy a derivatively neglected child. In support of the motion, ACS has submitted the transcript from a Criminal Court proceeding, containing respondent mother's allocution to the Endangering of the Welfare of a Child, an "A" misdemeanor and her acknowledgment that on one occasion she hit the child Eliceo with an open hand causing a bruise or a black eye, but no injury. The motion is opposed by respondent mother and supported by the Law Guardian although she has submitted no papers in support.
After having carefully considered the papers submitted, the Court denies summary judgment
finding that the mother's admissions are insufficient to establish neglect as a matter of law..
PROCEDURAL HISTORY
On October 20, 2006, ACS filed neglect petitions pursuant to Family Court Act §§ 1012(e)(I) & (ii) against the respondent mother alleging that the child Elizeo was a neglected child as a result of respondent mother on October 15, 2006, inflicting excessive corporal punishment against him, causing the child to sustain a bruises to his right eye. In addition, the petitions allege that the child reported "that the respondent has beaten him on prior occasions with a belt." The respondent has four prior ACS indicated cases against her which related to her using excessive corporal punishment. Finally, the petitions allege that the child's sibling is a derivatively neglected child. On that date, the Hon. Anne Feldman granted the motion of the Administration for Children's Services for a removal of the children and a remand to their care.
On, November 28, 2006, in Criminal Court, Kings County, the respondent pled guilty to the
Endangering of the Welfare of a Child, pursuant to Penal Law § 260.10. During the
allocution, respondent mother made the following admissions:
THE COURT: On October 15, 2006, inside of 2259 Church Avenue in this County,
were you with Alesio (Elizeo) Cortez?
THE DEFENDANT: Yes.
THE COURT: Is that your son?
THE DEFENDANT: Yes.
THE COURT: How old was he back in October?
THE DEFENDANT: He is seven..
THE COURT: Did you strike him with your hands
THE DEFENDANT: Yes.
THE COURT: How many times did you strike him?
THE DEFENDANT: One.
THE COURT: Where did you strike him?
THE DEFENDANT: By the face, right here (Witness indicating)
THE COURT: On the left side of the face?
THE DEFENDANT: Yes.
THE COURT: Did you slap him with your hand?
THE DEFENDANT: Yes.
THE COURT: With an open hand?
THE DEFENDANT: Yes.
[*2]
THE COURT: Did you give him a black eye?
THE DEFENDANT: I it got bruised up yes.
THE COURT: Was there any injury, Mr. Nikol (the assistant district attorney)?
Mr. Nikol: No.
The Criminal Court accepted respondent mother's admission and sentenced her for a period of three months incarceration. In addition, the court entered a final order of protection against respondent mother on behalf of the child, "subject to Family Court orders."
On January 23, 2007, the matter was transferred to this Part. On January 25, 2007, the Court,
upon the mother's request, conducted a hearing pursuant to Family Court Act §1028. At the
conclusion of the FCA §1028 hearing, the Court granted the mother's application for the
return of the children.
CONCLUSIONS OF LAW
The Court of Appeals established the appropriateness of summary judgment in neglect and abuse proceedings in Suffolk County DSS v James M. (83 NY2d 178 [1994]). Summary judgment is useful in expediting the just resolution of a legal dispute and in conserving overburdened judicial resources (Id.). When there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims properly adjudicated (Andre v Pomeroy, 35 NY2d 361 [1974]).
The burden on a motion for summary judgment is upon the movant who is required to set forth a prima facie showing of its entitlement to summary judgment regardless of the sufficiency of the opposing papers. If the movant fails to meet its burden, then the motion for summary judgment must be denied (In re Guardianship of P.E.G., 5 Misc 3d 1029(A) [Fam Ct, Nassau County 2004]).
While summary judgment may be warranted in certain child protective proceedings, it "remains a drastic procedural device which will be found appropriate only in those circumstances when it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function" (In re Suzanne RR.,35 AD3d 1012 [3d Dept 2006]; In re Hannah UU.,300 AD2d 942 [3d Dept 2002]). Since summary judgment is the procedural equivalent of a trial, any doubt as to the existence of a triable issue, or where the material issue of fact is arguable, summary judgment must be denied (In re Guardianship of P.E.G.,5 Misc 3d 1029[A], supra).
In the instant case, respondent mother's admissions in Criminal Court are insufficient to
establish that Elizeo is a neglected child or that his sister is a derivatively neglected child without
additional evidence adduced at a fact-finding hearing.
A. Respondent's Criminal Conviction is Insufficient to Establish Neglect Per
Se
Penal Law § 260.10 (1) provides that a person is guilty of Endangering the Welfare of a
Child when:
He or she knowingly acts in a manner likely to be injurious to the physical, mental or
moral welfare of a child less than 17 years old or directs or authorizes such child to engage in an
occupation involving a substantial risk of danger to his life or health; or
Being a parent, guardian or other person legally charged with the care or custody of a
child less than 18 years old, he or she fails or refuses to exercise reasonable diligence in the
control of such child to prevent him from becoming an "abused child," a "neglected child," a
"juvenile delinquent" or a [*3]"person in need of supervision," as
those terms are defined in articles ten, three and seven of the Family Court Act.
The Family Court Act defines a neglected child as "one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [respondent] . . . to exercise a minimum degree of care" (Family Ct Act § 1012 [f] [I]).
In the instant case, respondent mother pled guilty to Endangering the Welfare of a Child. She thereby admitted that she knowingly acted in a manner likely to be injurious to the welfare of her son (People v Levy, 7 Misc 3d 1020(A) [Sup Ct, Bronx County 2005]). In addition, she admitted that she that on one occasion, she hit the child in the face with on open hand and caused a bruise or a black eye, however, the record establishes that her actions did not result in any actual injury to the child.
These admissions are insufficient, without more, to establish the requisite elements of neglect, specifically, that respondent failed to exercise a minimum degree of care and that her failure resulted in the child's condition "becoming impaired" or in being in "imminent danger of becoming impaired," which are both required to establish neglect. In order for the respondent's conviction and/or allocution to establish neglect per se, the danger created by her failure to exercise reasonable care must be "near or impending, not merely possible" (Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]). Although physical impairment is not defined by statute, Family Court Act § 1012(h) defines "impairment of emotional health" and "impairment of mental or emotional condition" as "a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior." The Practice Commentaries to Family Court Act § 1012 use that statutory definition as a model to define "impairment of a physical condition" and arrive at the following formulation: "a state of substantially diminished physical growth, freedom from disease, and physical functioning in relation to, but not limited to, fine and gross motor development and organic brain development" (Matter of Nassau County Department of Social Services on Behalf of Dante M., 87 NY2d 73, 78-79 [1995], citing Besharov, Practice Commentary, McKinney's Cons.Laws of NY, Book 29A, Family Ct.Act § 1012, at 239).
An action that is likely to be injurious but which results in no injury is not necessarily one that causes an impairment or imminent danger of an impairment. In this regard, the requirements for the risk of injury standard set by the Family Court Act is higher than the one set by the Penal Law.
In other words, ACS has failed to satisfy its burden, as the proponent of the motion for
summary judgment, to establish the identicality of issue of respondent mother's neglect of Alesio
in the instant child protective proceeding, and the issues resolved against her in the Criminal
Court proceeding. In this case, unlike the cases in which summary judgment has been granted,
the movant has failed to establish the requisite elements of collateral estoppel (see eg, Suffolk
County Dept. of Social Services on Behalf of Michael V., 83 NY2d 178 [1994]
[summary judgment was properly granted against stepfather based on conviction of 15 counts of
sodomy of subject child since acts of sodomy for which he was convicted fell within broad
allegations of abuse petition, and petitioner satisfied its burden to establish identicality of issue of
stepfather's sexual abuse of the child in instant child protective proceeding and issues resolved
against him in criminal proceeding]; In re Desiree C., 7 AD3d 522 [2d Dept 2004]
[summary judgment granted against respondent who was convicted of Sodomy in the First
Degree, Sexual Abuse in the First Degree, and Endangering the Welfare of [*4]a Child]; Matter of Jimmy A., 218 AD2d 734 [2d Dept
1995] [summary judgment was properly granted against father convicted of Sodomy in Second
Degree and Sexual Abuse in Second Degree since exactly the same conduct was alleged in abuse
petition and the father's criminal conviction is conclusive proof as to finding that the child is an
abused child]; In re P./R. Children, 14 Misc 3d 1232(A) [Fam Ct, Kings County 2007]
[summary judgment granted against father convicted of Attempted Sexual Abuse in the First
Degree and Endangering the Welfare of a Child where he admitted to sexual contact with subject
child by touching his penis to her vagina and to knowingly acting in manner likely to be injurious
to physical, mental and moral welfare of child]; In re Brittany B., 13 Misc 3d 1225(A)
[Fam Ct, Kings County 2006] [summary judgment granted against respondent who admitted that
he endangered physical and moral welfare of the subject by placing his penis inside her vagina];
In re Marquekah B., 12 Misc 3d 1191(A) [Fam Ct, Kings County 2006] [summary
judgment granted against respondent mother convicted of Sexual Abuse in the First Degree and
Endangering the Welfare of a Child where she admitted she engaged in sexual contact with child
and knowingly acting in manner likely to be injurious to physical, mental and moral welfare of
child]; see also In re Angel S. 12 Misc 3d 1154(A) [Fam Ct, Kings County 2006]
[summary judgment granted against respondent mother based of her prior testimony that she sent
15-month-old to stay with respondent father who killed him although prior weekend child had
returned from his home with bruise on his forehead, bruise under his left eye, and two lines on
right side of his face, all of which child had not had prior to weekend visit]).
B. Respondent's Admission to One Instance of Excessive Corporal Punishment
is Insufficient to Establish Neglect Per Se
In the instant case, respondent mother's acknowledgment that she hit her son in the face with
an with an open hand on one occasion is likewise insufficient to warrant summary judgment. It is
black letter law that one act of child maltreatment may, in certain instances, be sufficient to
establish child neglect (see, In re Samuel Y., 270 AD2d 531 [3d Dept 2000]; Matter
of Tanya T., 252 AD2d 677 [3d Dept 1998], lv denied 92 NY2d 812 [1998]), and
that it is not always necessary to prove a course of conduct. Nevertheless, it is equally
well-settled that a single isolated incident of excessive corporal punishment is not sufficient to
establish neglect per se (see e.g., In re P. Children, 272 AD2d 211 [1st Dept 2000], lv
denied 95 NY2d 770 [isolated incident held insufficient to support finding of neglect where
mother struck nine-year-old with buckle end of strap, causing bruising around eye and multiple
lacerations; while losing one's temper does not excuse striking and injuring one's child, one such
event does not necessarily establish abuse or neglect]; Matter of Luke M., 193 AD2d 446
[1st Dept 1993] [one incident in which 11-year-old was slapped by respondent after which child
punched respondent in face, and respondent grabbed or choked child held insufficient to support
finding that child's physical, mental or emotional condition had been impaired or was in
imminent danger of becoming impaired]; Matter of Coleen P.,148 AD2d 782 [3d Dept
1989] [one incident in which respondent shook five-year-old child and caused child's head to
strike pavement, causing bruise held insufficient to support finding of neglect]; see also In re
Amanda E., 279 AD2d 917 [3d Dept 2001] [one incident in which respondent slapped
16-year-old across her face causing a black eye held insufficient to establish neglect given child's
age, circumstances under which altercation occurred and isolated nature of parent's admittedly
inappropriate conduct]; Matter of Joshua F., NYLJ, Aug. 28, 1998, at 23, col 6 [Fam Ct,
Bronx County] [one occasion in which stepfather reacted inappropriately and bit unruly child
twice on leg held insufficient to establish neglect]; Matter of Cooper, NYLJ, Oct. 14,
1999, at 33, col 2 [Fam Ct, Kings County] [one incident in which parent used belt to inflict
punishment upon 14-year old held insufficient to establish neglect [*5]per se];see alsoMatter of Kim HH.,239 AD2d 717
[3d Dept 1997]).
C. Neither Respondent's Conviction nor her Allocution are Sufficient to
Establish Derivative Neglect Per Se
Family Court Act § 1046 (a) (I) provides that "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." Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding of neglect may be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under Family Court Act § 1012 (f) (I) (B) (Matter of Christina Maria C., 89 AD2d 855 [2d Dept 1982]).
Neverthelesss, it is well settled that evidence as to the neglect of one child, standing alone, does not establish a prima facie case of neglect of other children in a parent's care (In re Abigail S., 21 AD3d 380 [2d Dept 2005]; Dutchess County Dept. of Social Services on Behalf of Douglas E., 191 AD2d 694 [2d Dept 1993]; In re Damaris Makiela O., 3 Misc 3d 1108(A) [Fam Ct, Kings County 2004] citing In re Cruz, 121 AD2d 901 [1st Dept 1986]). The determinative factor is whether the nature of the neglect, notably its duration and the circumstances surrounding its commission "evidence[s] fundamental flaws in the respondent's understanding of the duties of parenthood . . . the derivative finding may be justified if the prior finding was so proximate in time to the derivative proceeding, that it can reasonably be concluded that the condition still exists" (Matter of Dutchess County Dept. of Social Services on Behalf of Noreen K., 242 AD2d 533 [2d Dept 1997]).
In the instant case, ACS asserts that a derivative finding is appropriate and that summary judgment should be granted based on respondent mother's fundamentally flawed understanding of the duties of parenthood and her actions toward the child Elizeo Cortez. The Court disagrees.
Having found that respondent mother's admissions are insufficient to establish neglect per se
as to the target child, the Court cannot conclude that her admissions are sufficient to establish
derivative neglect per se as to the child's sibling. Moreover, even if the Court were to grant
summary judgment as to the child Elizeo based on the Criminal Court plea and allocution, it
would nevertheless be required to deny it as to the child's sibling (see e.g., Matter of Amanda
R., 209 AD2d 702 [2d Dept 1994] [no basis for a derivative finding with respect to sibling of
target child; a single incident of child maltreatment of target child standing alone does not
establish a prima facie case of derivative neglect as to target child's siblings]; Matter of
Daniella HH., 236 AD2d 715 [3d Dept 1997]; In re Samuel Y., 270 AD2d 531 [3d
Dept 2000] [no basis for derivative neglect finding with respect to sibling of target child; single
incident in which parent struck target child in face insufficient to prove that parent manifested
such an impaired level of judgment as to create a substantial risk of harm for any child in
respondent's care]).
Accordingly, it is
ORDERED, that the petitioner's motion for summary judgment is denied.
E N T E R:
_____________________________EMILY M. OLSHANSKY, J.F.C
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