Matter of Donna J.

[*1] Matter of Donna J. 2010 NY Slip Op 50004(U) [26 Misc 3d 1206(A)] Decided on January 6, 2010 Family Court, Kings County Hamill, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2010
Family Court, Kings County

In the Matter of Donna J. Lamo E. Children Under Eighteen Years of Age Alleged to be Neglected by LAMAR E. FATIMA J. JAMES S., Respondents.



NN-00333-34/08



Janet Gottleib, Esq. for petitioner

Division of Legal Services

Administration for Children's Services

330 Jay Street

Brooklyn, New York 11201

Leslie Spitz, Esq. for the respondent Fatima J.

249 Smith Street, Suite 121

Brooklyn, New York 11231

Shawn Blumberg, Esq, for the respondent Lamar E.

Brooklyn Family Defense Project

Legal Services NYC

177 Livingston Street, Suite 700

Brooklyn, NY 11201

Nicole Bingham, Esq. for the subject children

The Legal Aid Society, Juvenile Rights Practice 111 Livingston Street, 8th Floor

Brooklyn, New York 11201

Sharyn Duncan, Esq. for the respondent James S.

32 Court Street, Suite 707

Brooklyn, NY 11201

Bryanne A. Hamill, J.

On October 27, 2009, the Administration for Children's Services (hereinafter "ACS") filed this motion for summary judgment. ACS asserts there are no triable issues of fact that infant twins, Donna J. and Lamo E., born on July 5, 2007, were neglected by their biological mother, Fatima J. (hereinafter "respondent mother" or "mother"), their biological father, Lamar E. (hereinafter "respondent father" or "father") and their maternal grandfather, James S. (hereinafter "respondent grandfather" or "grandfather"), as defined by §1012(f) of the Family Court Act (hereinafter "FCA"). The attorney for the children has submitted an affirmation in support and the attorneys for the respondent mother and father have submitted affirmations in opposition.

This child protective proceeding was commenced on January 15, 2008, with the filing of a neglect petition against the mother, father and grandfather, with an application for a court ordered removal and remand to ACS, pursuant to FCA §1012. The petition alleges that the respondents failed to provide Lamo and Donna with adequate medical care. On or about July 23, 2007, the staff at Kings County Hospital informed the petitioner that Lamo was discharged from Kings County Hospital to the care of the respondent grandfather. The child had required surgery and colostomy shortly after his birth and the grandfather was provided with a postoperative surgical appointment at Kings County Hospital, which he did not keep. Further, according to a family member, the mother became frustrated when the hospital staff attempted to teach her how to care for the child's colostomy, and she pushed the baby away. The petition next alleges that a staff member at the Lexington School for the Deaf informed the petitioner that on December 31, 2007, the mother had to be convinced that Lamo needed medical attention for blood around the area of the colostomy; subsequently, Lamo was brought to the emergency room at Kings County Hospital. On January 11, 2008, a physician there informed the petitioner that Lamo was emaciated, had a severe rash diagnosed as cellulitis around the area of the colostomy, the left side of his groin area and the left side of his neck and was diagnosed with possible failure to thrive. Because Lamo was alleged to be medically neglected, his twin sister Donna is alleged to be at risk of being neglected.

The petition further alleges that all three respondents failed to provide adequate shelter to the children, as the home was observed on or about January 8, 2008 to have no heat, no hot water, no smoke or carbon dioxide detectors or window guards.

The petition next alleges that according to the staff at the Lexington Center School for the Deaf, the mother is borderline mentally retarded and discontinued her psychotherapy in November 2007. The center also reports that she did not attend parenting skills sessions regularly and she does not appear to be fit to safely care for her children. The petition further states that five of the mother's older children were found to be neglected and are not in her care and custody; one is in the custody of the child's paternal aunt and the other children have been surrendered for adoption.

The petition alleges that the grandfather is a person legally responsible for the children [*2]because he reported to ACS upon the birth of the children that he would supervise the mother in caring for Lamo and Donna. However, he later reported to ACS staff that he goes to work and leaves the children in the mother's care, and that he does not believe that the mother has any limitations beyond her hearing impairment that prevents her from caring for the children. Further, according to the staff at Lexington Center, the grandfather is often unaware of the whereabouts of the respondent mother and Lamo and Donna.

The petition next alleges that while aware that the mother and the grandfather fail to care for the children adequately, the children's father did not take any action to assume care for Lamo and Donna. He allegedly advised ACS that the mother drinks beer and smokes weed, and that the house is nasty. The father informed the petitioner that he no longer resides with the mother because she was frequently aggressive; on one occasion she threw a coffee pot at him. Lastly the petition alleges the father was aware that the mother was impatient and frustrated when the hospital staff attempted to teach her how to care for Lamo's colostomy; the father was present when the mother pushed the baby away.

Pursuant to FCA §1027, this Court conducted a hearing to determine whether the children's interests require protection, including whether the children should be removed from their parents and person legally responsible, pending a final order of disposition. Upon the credible evidence adduced at the §1027 hearing, this Court found that the removal of these twins from the respondents was necessary to avoid placing their life or health in imminent risk, and remanded them by placing these infants in the custody of ACS.

ACS has filed this motion for summary judgment contending that there are no triable issues of fact as to whether the mother derivatively neglected Lamo and Donna, because the mother was found neglectful of her other five children, none of whom is in her care. The petitioner has annexed to its motion copies of the prior orders made by this Court dated October 11, 2005, which found that the mother neglected her children by virtue of inadequate supervision and guardianship.

The petitioner further contends that there are no triable issues of fact because the father and the grandfather made admissions under oath, which would negate the need for a fact-finding hearing. The petitioner argues that the grandfather testified under oath at the FCA §1027 hearing that he was aware of the Court's prior determinations that his daughter, the mother, was not fit to care for her older children, and that he took no action to ensure that Lamo and Donna were cared for by someone other than the mother. He testified that he believed that the mother did not have any parenting deficiencies except for those problems resulting from her deafness. He also testified that at the time of the hearing, his home, where the children were living before they were removed, was without heat and hot water and was being kept warm by the gas stove. Petitioner has also annexed a copy of the grandfather's testimony from the §1027 hearing in its entirety.

Further, ACS contends that, under oath at the FCA §1027 hearing, the father testified he was aware that the mother was not capable of providing adequate care for the children, but he left the home on October 17, 2007 because of the problems in his relationship with the mother. He further acknowledged that he did not take any action to ensure that the children, whom he did not see from October 17, 2007 until December 31, 2007, were adequately cared for. Further, he testified that he knew that the mother had problems managing her anger and also was reluctant to manage Lamo's colostomy. Petitioner has annexed a copy of the father's testimony from the §1027 hearing in its entirety. [*3]

The mother has submitted opposition to ACS's motion by way of attorney affirmation, not her affidavit, claiming the prior findings are too remote in time to justify a finding of derivative neglect. The father has submitted an attorney affirmation, not his affidavit, in opposition to ACS's motion. No opposition papers have been submitted by the grandfather.

The children's attorney supports ACS's motion and requests a finding of neglect against the three respondents. She contends that a derivative neglect finding should be made against the mother based on her neglect of her five other children, asserting that the dispositional and permanency orders for this mother's other children were entered on March 23, 2007, wherein the Court placed those children in the care of ACS, approving the permanency plan for those children as adoption. These infant twins were born only four months after this order was entered.

The children's attorney also supports ACS's position that the grandfather's testimony establishes that he is a person legally responsible for the subject children. As such, a finding of neglect is appropriate based on his testimony at the FCA §1027 hearing held before this Court. The grandfather testified that he was aware of the Court's prior findings that the mother was found to lack parenting capabilities to care for her other children, and that the home they resided in did not have any heat or hot water for approximately two weeks.

Counsel further asserts that the father's testimony at the §1027 hearing provided ample evidence of his neglect of Lamo and Donna. Specifically, counsel cites specific portions of the transcript, in which the father testified that he did not see his children from October 2007 to December 2007, that he knew that the mother was having difficult changing Lamo's colostomy bag, that she got upset and needed to learn more about taking care of the children. He also testified that his decision to leave the home was best for him, but not for his children.

ANALYSIS

The issue for this Court to determine is whether, as a matter of law, based upon the credible evidence adduced at the FCA §1027 hearing, including the father and grandfather's sworn admissions, as well as this Court's prior findings of neglect against the mother for her five older children, that Lamo and Donna were neglected by each respondent, pursuant to the Family Court Act §1012 (f) (i).

The Court of Appeals established the appropriateness of summary judgments in neglect and abuse proceedings in Suffolk County DSS V. James M., 83 NY2d 178 (1994). "Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can be properly resolved as a matter of law." Andre V. Pomeroy, 362 NYS2d 313, 133 (1974). "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 promptly adjudicated."

Id. at 133. "Where the moving party has demonstrated that it is entitled to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a triable issue of fact or tender an acceptable excuse for failing to do so,and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement." Zuckerman v. City of New York, 49 NY2d 557 (1980).

The Second Department in Matter of Justin P., 50 AD3d 802 (2nd Dept. 2008) upheld the appropriateness of entering a finding via summary judgement in a child protective proceeding based on the submission of the respondent's sworn admission in conjunction with [*4]other evidence and where the respondent failed to demonstrate a triable issue of fact. In Justin P., the Appellate Division found that ACS, moving for summary judgement in a child protective proceeding, established prima facie entitlement to judgment as matter of law, that mother abused, neglected and /or derivatively neglected her children by tendering sworn testimony of the mother and medical examiner's report of the autopsy of the sibling of the subject children.

New York Family Court Act §1012(f)(i) defines a "neglected child" as:

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 exercise a minimum degree of care:

(A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, or medical, dental, optometrical or surgical care...;or

(B) in providing the child with proper supervision or guardianship... With respect to the mother, ACS has moved this Court for a finding that these infant twins have been derivatively neglected by their mother, based upon this Court's prior findings of neglect of her other children.

New York Family Court Act §1046(a)(i): Proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other subject child.In Amber C., 38 AD3d 538, 540 (2nd Dept. 2007) the Second Department held, "Where the

nature of child neglect, notably its duration and the circumstances surrounding its commission, evidences fundamental flaw in the parent's understanding of the duties of parenthood...the derivative finding may be justified, if the prior finding was so proximate in time that it can be reasonably be concluded that the condition still exists. ( Matter of Hannah UU, 300 AD2d 942 (3d Dept. 2002); Matter of Baby Boy W., 283 AD2d 584 (2nd Dept. 2001); Matter of Cruz, 121 AD2d 901 (1st Dept. 1986). In such a case the condition is presumed to exist currently, and parent has the burden of proving that the conduct or condition cannot be reasonably be expected to exist currently or in the foreseeable future.'" (Matter Baby Boy W., supra at 584; Matter of Cruz, supra at 902-902; Matter of Hannah UU, supra at 944).

This Court's October 11, 2005 finding of neglect against the mother established that her other children, Bryant, Shaun, Michael, Ryan and Lily were neglected children by virtue of her inadequate supervision and guardianship. On March 23, 2007 this Court held a dispositional and permanency hearing. This Court found that this respondent mother had failed to complete the required services due to her severe mental and emotional limitations and that the children had been in nonkinship foster care for over fifteen months. This Court approved a goal of adoption for the children. The mother was placed under the supervision of ACS and was mandated to participate in and complete a special needs parenting skills program, attend weekly individual psychotherapy at the Lexington School for the Deaf, and apply for supportive housing. This Court further ordered that the agency explore a conditional surrender of the subject children, to free them for adoption. Inasmuch as the subject children Donna and Lamo were born only four months after this Court's findings at the dispositional hearing, the conduct which formed the basis for these decisions is proximate enough in time that it can be reasonably concluded that the condition still exists. Moreover, the mother did not submit to the Court an [*5]affidavit refuting any of these facts, or rasing factual issues upon which an evidentiary hearing should be held. Accordingly, there is no triable issue of fact as to whether Donna and Lamo are derivatively neglected children.

With respect to the grandfather, ACS has alleged the grandfather in this matter to be a person legally responsible for Lamo and Donna pursuant to FCA §1012(g), which defines a person legally responsible as the "child's custodian, guardian, any other person responsible for the child's care at the relevant time. A person legally responsible may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child."

The grandfather testified at the FCA §1027 hearing that the children came to live with him when they were released from the hospital, and that the mother, his daughter, has always resided with him (FCA §1027 Hr'g. Tr. January 17, 2008 89:9-15; 90: 8-11, 21-25; 91: 1-4). He testified that the hospital showed him how to care for Lamo's colostomy bag (FCA §1027 Hr'g. Tr. January 17, 2008, 93:22-25; 94:1-20); he changed the twins' diapers and accompanied them to their doctor appointments (FCA §1027 Hr'g. Tr. January 22, 2008, 60:4-19) and he dressed them ( FCA §1027 Hr'g. §Tr. January 22, 2008, 63:17-23).He has failed to submit a personal affidavit raising any factual issues. Accordingly, the Court finds the grandfather is a person legally responsible for Lamo and Donna, inasmuch as he resided in the home with the infants and his conduct contributed to the neglect of the children, pursuant to FCA §1012(g).

ACS is requesting that this Court find that, based upon the credible evidence including the grandfather's and the father's testimony at the FCA §1027 hearing, there are no triable issues of fact that Lamo and Donna were neglected by them. The issue for this Court to determine is whether, as a matter of law, based upon the testimony given by the grandfather and the father at the FCA §1027 hearing, that Lamo and Donna were neglected by them, pursuant to the Family Court Act.

This Court, on January 16, 2008, prior to taking testimony, informed all counsel that it would take judicial notice of all the orders that were entered under the prior Article 10 Neglect cases, the Article 6 Commitment of Guardianship and Custody Dockets, and the Adoption Surrender dockets, with respect to this mother and to the maternal grandfather, whom the Court had specifically found not to be a fit and suitable resource for the older siblings who were freed for adoption.

A review of the transcript of the FCA §1027 hearing held by this Court reveals that the grandfather testified he was aware that this Court had previously found that the mother did not possess the parenting capabilities to care for her other children (FCA §1027 Hr'g. Tr. January 22, 2008 92:15-22) but that he believed the mother's other children were removed from her care because of a conflict with a prior home health aide who did not know sign language (FCA §1027 Hr'g. Tr. January 22, 2009 75:10-25; 76:1-9). He also testified that the only concern he had with the mother's parenting ability was that she cannot hear the babies cry (FCA §1027 Hr'g. Tr. January 22, 2009 78:5-12). The grandfather also reported that his family owns the building he and the mother reside in, and on the day of the hearing there was no heat or hot water as the boiler was broken and he was waiting for a new boiler to be installed (FCA §1027 Hr'g. Tr. , January 22, 2009 93:18-25; 94:1-16).

Based upon the grandfather's sworn testimony and the Court's prior findings, this Court now finds no triable issues of facts as to the allegations against the grandfather in [*6]paragraphs two and six of the petition. Knowing that the Court had found that the mother did not possess the parenting capabilities to care for her older children, the grandfather showed poor judgment and a lack of insight in allowing the mother to attempt to care for Lamo and Donna. Further, he allowed the children, one of whom has special medical needs, to reside in the home without heat and hot water in January. The Court finds that based on the testimony of the grandfather and the totality of credible evidence, Lamo's physical condition was impaired and Donna's physical, emotional and mental conditions were in imminent danger of becoming impaired because of the grandfather's failure to exercise a minimum degree of care. Accordingly, there are no triable issues of fact that the grandfather neglected Lamo and Donna by failing to provide adequate shelter, supervision and guardianship for the children, pursuant to FCA§1012 (f)(i)(A)(B).

With respect to the father, ACS is asserting that there are no triable issues of fact as to allegation seven of the petition, wherein the father claims he knew that the mother and the grandfather could not adequately care for the children, yet he failed to take any action to assume their care. Counsel for the children supports this finding.

A review of the transcript of the FCA §1027 hearing reveals that this Court found that the father left his two infants in a home which he describes as nasty, in very poor condition, with a mother whom he knew to be aggressive, impatient and unreliable in caring for his children. He did not, according to his own testimony, take any steps to remove his children from that home (FCA §1027 Hr'g. Tr. January 22, 2009, 117:4-13). Further, the father testified that he knew that the mother had problems changing the child's colostomy bag and would get upset when doing so (FCA §1027 Hr'g. Tr. January 17, 2009 75:8-14; 76:1-25; 77:1-4). It is undisputed that the father left the home in October and did not go back to see the children until the end of December. It is further undisputed that Lamo was taken to the hospital December 31, 2007 because of blood around the colostomy and on January 11, 2008 was observed by the hospital staff to be emaciated, with a severe rash around the area of the colostomy. The father has failed to submit a sworn affidavit disputing these facts.

"Family Court Act Art. 10 is grounded on a fundamental policy that parents are the primary protectors of their children. Society depends on and demands their vigilance. If parents fail in this vigilance to a degree which is rationally deemed to be dangerous, society, through the state, must intervene." Matter of Maureen G. 103 Misc 2d 109,117 (Fam Ct Richmond Co 1980).

In re Breeyanna S., 52 AD3d. 342 (1st Dept. 2008), the Court held that the father put his child's physical, mental and emotional condition in imminent danger of becoming impaired by continually leaving the child in the mother's care when he went to work although aware of the mother's long-standing alcohol abuse. Id at 343. See Matter of Ashante M., 19 AD3d 249 (1st Dept. 2005).

Here, the infant twins' father, who has testified that he was concerned about their well-being, was the primary caretaker for his medically fragile child and acknowledged that the mother would often lose her temper. He further testified that he believed that the mother needed to learn more how to care for the children (FCA §1027 Hr'g. Tr. January 17, 2009 71:11-25;72:1) and that she became emotional and agitated ( FCA §1027 Hr'g. Tr. January 17, 2009 73:11-25). Lastly, he testified that he was with the mother when she pushed the baby out of the way as the hospital staff tried to train her to care for Lamo's colonostomy bag (FCA §1027 Hr'g. Tr. January 17, 2008, 76:2-5). [*7]

He also testified that he believed because the children were in the home with the grandfather they would be safe (FCA §1027 Hr'g. Tr. January 17, 2009 70:24-25; 71:1-7); however, he also testified that he was concerned because the grandfather could not control the mother's temper (FCA §1027 Hr'g. Tr. January 17, 2009 74:4-8 ;75:1-7). This father chose to leave his children with their mother, who he knew was unable to properly care for them, in a home that was in poor condition. This is the home that the caseworker found to have no heat and hot water when she visited in January.

This Court finds that based on the sworn testimony of the father, in conjunction with the totality of the credible evidence, Lamo's physical condition was impaired and Donna's physical, emotional and mental conditions were in imminent danger of becoming impaired because the father failed to exercise a minimum degree of care. Accordingly, there are no triable issues of fact that the father neglected Lamo and Donna by failing to provide adequate shelter, supervision and guardianship for the children, pursuant to FCA 1012 (f)(i)(A)(B).

CONCLUSION

Insofar as ACS has demonstrated a prima facie entitlement to summary judgment and respondents have failed to raise any factual issues warranting an evidentiary hearing thereupon, ACS's motion for summary judgment is granted to the extent that this Court enters derivative findings of neglect, pursuant to FCA §1012(f)(i)(A)(B), against the mother as to Lamo and Donna; a finding of neglect against the respondent grandfather by virtue of his inadequate shelter, supervision and guardianship, pursuant to FCA §1012(f)(i)(A)(B); and against the respondent father by virtue of his inadequate shelter, supervision and guardianship, pursuant to FCA §1012(f)(i)(A)(B).

The foregoing constitutes the Decision and Order of this Court.

Dated: Brooklyn, New York

January 6, 2010

ENTER:

HON. BRYANNE A. HAMILLJudge of the Family Court