Matter of Joshua J.

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[*1] Matter of Joshua J. 2011 NY Slip Op 51577(U) Decided on August 18, 2011 Family Court, Westchester County Colangelo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2011
Family Court, Westchester County

In the Matter of Joshua J. A Child under Eighteen Years of Age Alleged to be Neglected by DERRICK K., Respondent.



NN- 16739-10

 

RICHARD BIRNBAUM, ESQ.

Attorney for Respondent, Derrick K.

200 Mamaroneck Avenue, No.504

White Plains, New York 10601

SHARI E. CLEMENS, ESQ.

Assistant Westchester County Attorney

Attorney for Petitioner

148 Martine Avenue

White Plains, New York 10601

JO-ANN CAMBARERI, ESQ.

Attorney for Princess J.

Guttridge & Cambareri, P.C.

303 S. Broadway, Suite 100

Tarrytown, New York 10591

DARREN DEURSO, ESQ.

The Attorney for the Children

188 E. Post Road, Suite 300

White Plains, New York 10601

John P. Colangelo, J.



In this Child Neglect proceeding under Article 10 of the Family Court Act ("FCA"), Petitioner Westchester County Department of Social Services ("Petitioner" or "DSS") brought a Petition in December 2010 charging that the Respondent Derrick K. ("Derrick K." or "Respondent") had failed to properly care for or supervise his four year old son Joshua J. ("Joshua"). Joshua was placed with Respondent pursuant to FCA § 1055 and, until late October, 2010, resided with Respondent at his home in Mount Vernon, New York.

The fulcrum of the Petition is an incident that took place at Respondent's Mount Vernon apartment during the evening of October 29, 2010. Joshua was then residing with Respondent in [*2]that apartment. According to the Petition, on the afternoon of October 29 Respondent was observed to be intoxicated to the point of impairment when he arrived to pick Joshua up from school, such that "his speech was slurred and he was stumbling." (Petition ¶ 1). That evening, the DSS Emergency Services Unit responded to Respondent's home; he refused to allow them to enter. Subsequently, the Mount Vernon Police forced entry into the apartment. Once inside, DSS found Joshua to be safe, but discovered a baseball bat and knife with a "10 inch blade" underneath a bed, and "readily accessible to the four year old subject child." (Petition ¶ 2). In addition, as soon as DSS had an opportunity to carefully observe Joshua, DSS workers allegedly observed a discoloration under one of his eyes which, according to Joshua, had been caused when his father struck him when he dropped a toy. (Petition ¶ ¶ 2-4). Immediately following the October 29 incident, Joshua was removed from Respondent's care and placed with a foster family.

Respondent entered a general denial to the allegations of the Petition, and a fact finding hearing was commenced on February 4, 2011 and continued intermittently for several days thereafter until May 7, 2011. Petitioner called several witnesses, including Margaret Flanagan and Francine Knight, the DSS Emergency Services workers who arrived at Respondent's apartment on October 29; Michelle Paine, a DSS Child Protective Services worker who spoke to and observed Joshua shortly after the October 29 incident; and Joshua's teacher, Lauren Pizzarello who testified as to Respondent's conduct and apparent condition when he picked Joshua up from school on the afternoon of October 29. Petitioner also adduced documentary evidence including photographs of Joshua allegedly depicting an injury to his eye, and an indicated report describing Respondent's behavior during the afternoon of October 29. That report, when received by DSS, prompted their visit to Respondent's home that evening. Respondent testified on his own behalf. In essence, he denied any intoxication or that he had struck his son; Respondent did concede, however, that he failed to provide DSS with access to his apartment, but sought to justify his conduct on the grounds of an overarching concern for his and Joshua's personal safety.

At the conclusion of the hearing Petitioner argued that Respondent's conduct on October 29 - - whether actuated by a legitimate concern for his and Joshua's safety or not - - clearly violated the terms of the agreement Respondent had made when Joshua was entrusted to his care, namely, that he would permit DSS to monitor him and his household in order to periodically verify Joshua's well being. Petitioner also maintains that the fact that a readily accessible knife and bat were found in the apartment is indicative of neglect, as well as Respondent's alleged intoxication and the report that he struck Joshua.

Conversely, Respondent contends that DSS acted unreasonably by arriving at his apartment after dark - - in what he described as a high crime area - - and, that in any event, DSS had no basis for a home visit at all since, Respondent claims, he was not intoxicated and never struck Joshua. As far as the knife and bat are concerned, Respondent asserted that he needed them for protection and they were located under his, not Joshua's, bed.

Based upon the testimony and documentary evidence adduced at the hearing and for the reasons set forth below, the Court finds that in view of Respondent's failure to comply with the important terms and conditions of Joshua's placement with him, Petitioner has sustained its burden of proving by a preponderance of the evidence that Joshua has been neglected by [*3]Respondent and that Joshua is found to be a neglected child under FCA 1012(f).

Findings of Fact and Conclusions

The sine qua non of FCA § 1055 placement is supervision. DSS is charged with that responsibility, to which the guardian must submit. Unless the guardian - - whether a parent or foster parent - - is willing and able to be supervised, such placement cannot succeed; DSS must be able to independently verify compliance by the guardian with the terms and conditions established by the FCA 1055 placement order. See Matter of Nassau Co. Ex rel. Dante M. v.Denise J, 87 NY2d 73 (1995) (Mother permitted to retain custody of child but only on condition of strict compliance with DSS directives); Matter of Baby Girl W., 245 AD2d 830(3d Dept. 1997). Absent such compliance, the purpose of such placement would be undermined and the child's well being and security jeopardized.

In order to ensure the subject child's safety and security, extensive and sometimes elaborate conditions, tailored to the particular situation and by which the guardian must abide, are often put into place as a precondition of supervised placement. Several such conditions - - by which Respondent agreed to comply - - were ordered here when Joshua was placed with him. As the Second Modified Permanency Hearing Order, entered September 20, 2010 (the "Permanency Order") prescribed, Respondent agreed and the Court ordered that DSS would "supervise the placement" of Joshua with him and that he would comply with a number of conditions - - all to be monitored by DSS. As the Order provided, in pertinent part,

" THE CHILD JOSHUA J. IS DIRECTLY PLACED pursuant to Family Court Act § 1055(a)(ii), in the custody of DERRICK K., the child's father, who has consented to the jurisdiction of this Court, until the completion of the next permanency hearing or further orders of this court.

During the pendency of the placement, the local Commissioner of Social Services shallsupervise the placement: under the following terms and conditions:

1. Derrick K. shall cooperate with supervision by the Westchester County Departmentof Social Services, such supervision shall include, but not be limited to, caseworkcounseling, and announced and unannounced visits to Derrick K.'s residence, andDerrick K. shall follow any and all recommendations from such caseworkcounseling; and

2. Derrick K. shall cooperate with, and complete, the Open Door alcohol treatmentprogram as arranged for by the Westchester County Department of Social Services andDerrick K. shall follow any and all recommendations resulting therefrom; and

3. Derrick K. shall ensure that the child, Joshua J., is available for, and attends, allscheduled visitation with the Respondent, Princess J., and Derrick K. shall transport thechild to, and from, said visits; and

4. Derrick K. shall cooperate with Family Preservation, as arranged for by theWestchester County Department of Social Services, and he shall follow any and all[*4]recommendations resulting therefrom; and during the period of direct placement, theRespondent shall comply with the terms and conditions as set forth above".

In the instant case, Respondent failed to comply with one of the most elementary conditions - - that the child be physically safe and, more to the point, that DSS - - by "announced and unannounced visits to Derrick [K.]'s residence" - - be offered the opportunity to verify that fact. The facts adduced at the hearing so show.

The testimony of Joshua's teacher, Ms. Pizzarello and the October 29 report to the Central Registry indicated that Respondent had either been intoxicated or physically unstable for some other unknown reason when he arrived at Joshua's school on October 29 at approximately 3 p.m. to pick up Joshua. Respondent claimed at the hearing that he was not intoxicated, but ill and under medication. Be that as it may, once notified of the situation and Respondent's apparent condition, DSS - -understandably - - made arrangements to promptly verify Joshua's well being. In light of the circumstances described to the agency, an immediate home visit, albeit in the evening and after business hours, was more than appropriate. Accordingly, two DSS workers - - Ms. Flanagan and Ms. Knight - - were dispatched to the Respondent's apartment.

As soon as they arrived, Ms. Flanegan and Ms. Knight knocked on Respondent's door and, through a closed and locked door, immediately identified themselves. Unfortunately, Ms. Flanagan and Ms. Knight were not viewed by Respondent as welcome guests; instead they were greeted by him with what may charitably be described as skepticism, but more accurately described as suspicion and hostility. Respondent refused to open his door, claiming that he feared for his safety. Rather than immediately summon the police, these two women did their best to calm Respondent and allay his professed fear. They presented their identification cards which they offered to display to Respondent if he would agree to open his door a crack; he demurred. They asked Respondent to open his door slightly in order to allow them to peek in at Joshua to verify his safe condition - - he refused. Next, they called Respondent on their cellular telephone in order to verify their identity to him; he ignored the call. Frustrated but undaunted, the DSS workers then called their supervisor who recommended that they enlist in the aid of the Mount Vernon Police. However, even the presence of two uniformed police officers could not persuade Respondent to open his door. When the police arrived - - accompanied by the same DSS workers - - they identified themselves, as had Ms. Flanagan and Ms. Knight. Incredibly, Respondent not only persisted in his refusal to allow anyone to enter, but proceeded to threaten the life of any person who attempted to do so.

Finally the DSS workers had reached their limit. After all, a child's welfare potentially hung in the balance. Ms. Flanagan and Ms. Knight called their supervisor again and he authorized the police to forcibly enter the apartment - - which the police officers did, after offering Respondent one last chance to voluntarily comply. When the police and DSS workers gained entry, they found Joshua to be healthy and safe, but also found a large kitchen knife and a baseball bat under the bed in the one bedroom of the apartment, easily accessible to a child of Joshua's age. Joshua was removed to foster care and Respondent was placed under arrest and charged in Mount Vernon City Court with misdemeanors, including Obstruction of Governmental Administration; those charges remain pending. The next day, Joshua was found to have a bruise under his right eye, which he told Child Services worker Michelle Paine was [*5]caused by Respondent.

At the fact finding hearing Respondent, rather than apologize for his, at best, inappropriate behavior, sought to justify or excuse his intransigence. He emphasized that DSS initially arrived at 9 p.m., and his personal safety "rule" was to refuse to open his door to anyone after 9 p.m. He further claimed that the peep hole on his door - - which would have permitted him to see the DSS workers and their identification without unlocking the door - - was broken, and that his neighborhood in Mount Vernon is a high crime area. The Court thinks that Respondent protests too much. Indeed, his purported rationale for refusing even the most rudimentary requests of the DSS workers is belied by the fact that, as Respondent conceded, his apartment door was equipped with a chain lock which would have allowed him to open his door slightly with the chain still attached and thereby to permit the DSS workers to, at the very least, display their identification - - as they had repeatedly offered to do. He failed to make even this modest concession. Plainly, the DSS workers and, ultimately the Mount Vernon Police, could only conclude that Respondent was refusing entry because he had something to hide, which apparently he did - - the readily accessible knife and bat.

Nor does the fact that Joshua was ultimately found to be safe excuse, with the aid of 20-20 hindsight, Respondent's conduct. Despite that fortunate fact, and contrary to Respondent's suggestion, DSS's decision to conduct a home visit, albeit at night time, was fully justified and cannot be seriously questioned. As the indicated report obtained by DSS that day reflected and as Joshua's teacher Ms. Pizzarello testified, Respondent had appeared at Joshua's school that very afternoon stumbling, bumping into walls, slurring his speech and otherwise appearing unstable. Under those circumstances, DSS not only had reasonable cause for, but a duty to, verify Joshua's safety and to do so by the means to which Respondent had previously consented - - an "unannounced visit to Derrick [K.]'s residence." (Permanency Order, supra) The fact that Respondent now maintains that he appeared as he did at Joshua's school because of illness and prescribed medication does not - - even if true - - alter the fact that given the information provided to DSS, the conduct of its representatives was entirely proper - - particularly in light of the agreement Respondent had made to subject himself to supervision, including home visits by DSS.

Indeed, even assuming arguendo that Respondent was ill rather than intoxicated when he picked Joshua up from school, and assuming further that no knife or bat were ever found in his apartment - - clearly not the case - - Respondent's conduct on the evening of October 29 would nonetheless constitute neglect under § 1012(f) of the Family Court Act. For, in light of the circumstances described above and found by the Court, Respondent's failure and refusal to afford DSS access to Joshua placed Joshua in "imminent danger of becoming impaired in his physical, mental and emotional condition." (Id.)

It is undisputed that when Joshua was placed in Respondent's care under FCA § 1055, Respondent freely agreed and was ordered to abide by several conditions governing his conduct; he agreed that he would, in effect, submit to DSS supervision including periodic and possibly random visits by DSS to his home, for any reason or for no reason. (See Perm. Order, supra). The unstated but apparent purpose of this condition is clear: DSS is the entity ultimately and statutorily responsible for a child's care under a FCA § 1055 placement. As such, DSS must be able to adequately monitor the guardian's relationship with the child - - including undertaking [*6]announced and unannounced visits to the home in order to remain assured that the child is well cared for in that placement and that, at minimum, his or her condition is not "impaired" or in "imminent danger of becoming impaired" (FCA § 1012(f)(i). That such visits - - and the in terrorum effect of the ongoing potential for them - - are an essential part of the agreement that all FCA § 1055 care givers enter into cannot be gainsaid.

While there appears to be no case law that specifically addresses the issue of whether a FCA § 1055 caregiver's failure to permit DSS access for a home visit, standing alone, constitutes neglect, courts have held that action - - or, more to the point, failure to act - - by a parent or guardian that carries the potential to negatively affect the welfare of the child in placement may well amount to neglect. Indeed, several types of action or inaction, the consequences of which have not, but may potentially prove deleterious to the safety or welfare of the child in placement, have been held to constitute neglect.

For example, a parent or guardian's failure or refusal to participate in a drug or alcohol treatment program, while in and of itself not injurious to the child, holds such potential for "imminent" future harm within the meaning of FCA § 1012(f) that such behavior has been held to constitute neglect. This and other examples of conduct that, while not directly harmful to the child, carry such potential for it that they are deemed neglect abound, and range from failure by the guardian to take prescribed medication to allowing the child to be left with an unsuitable sitter. See, e.g., In re Harmony S., 22 AD3d 972 (3rd Dept. 2005) (Developmentally disabled mother's refusal to follow DSS directives, including that she obtain mental health and anger management referral held to be neglect because of imminent danger of impairment of child's welfare); In re Shawndalaya II, 31 AD3d 823 (3d Dept. 2006) (Mother's failure to take prescribed medication for mental health condition sufficient to support finding of neglect); In re John QQ., 19 AD3d 754, 756 (3d Dept. 2005) (Failure of mother, an admitted past crack user, to "voluntarily or regularly participate in a drug rehabilitation program" supported neglect finding under FCA § 1012); In re Jaileen T. v. Gloria T., 30 AD3d 604 (2d Dept. 2006) (Failure of parent to secure stable housing amounts to imminent danger to children and supported neglect finding); In re Jeremy H, 193 AD2d 799 (2d Dept. (1993) (Refusal of parent with history of abusive behavior to acknowledge past conduct or attend treatment programs constitutes neglect even in absence of any documented act of physical abuse against subject child); In re Henry W., 30 AD3d 695 (3d Dept. 2006) (Mother's failure to submit to treatment for schizophrenia as directed by DSS supported neglect finding); In re Lashina P. v. Anderson J., 52 AD3d 293 (1st Dept. 2008) (Father held to neglect child by his insistence that mildly retarded mother could ably care for child, despite DSS opinion to the contrary, and father's expressed intention to leave child unattended with her); In re Paul P., 306 AD2d 653 (3d Dept. 2003) (Permitting convicted and untreated sex offender to have unsupervised contact with child held to pose an imminent danger); In re Stefanel Tyesha C., 157 AD2d 322 (1st Dept. 1990) (Mother's failure to enroll in drug treatment program despite newborn's positive cocaine test amounted to imminent danger to child, neglect found); In re Milland, 146 Misc 2d 1 ( Fam. Ct., NY Co. 1989) (Admitted prenatal abuse of alcohol led to inference of continued use after birth and placed child in imminent danger of harm).

In each of these situations, the guardian was held to have neglected the child in his or her custody not by directly injuring the child - - by, for example, striking the child or not providing [*7]nourishment - - but rather by failing to abide by conditions to which the guardian had agreed and which were designed to prevent harm from occurring.Similarly, in the instant case, Respondent manifestly failed to live up to that end of the bargain when he was given FCA § 1055 responsibility for Joshua. In essence, Respondent neglected Joshua by neglecting his responsibilities to the entity ultimately charged by statutory directive to keep him safe - - the Department of Social Services. By shirking his responsibility to DSS through his failure to abide by conditions of supervision to which he had previously agreed, Respondent in effect placed Joshua's safety and welfare at risk. The Court finds that such contumacious conduct as exhibited by Respondent constitutes neglect under FCA Article 10, and thereby sustains the Petition on that ground.

As far as the portion of the Petition relating to the bruise below one of Joshua's eye's and Petitioner's claim that it was caused by Respondent is concurred, the testimony and documentary evidence adduced at the hearing proved somewhat ambiguous. The bruise was not discovered until the day after Joshua was removed from Respondent's apartment. Once examined, the bruise was apparently found not to be of recent origin and its cause - - Respondent or typical child's play - - rather unclear. In any event, in view of the Court's finding of neglect with respect to Respondent's behavior on the evening of October 29, 2010, the Court need not reach the issue of the bruise under Joshua's eye.

Accordingly, the Court finds that the Petitioner has sustained its burden pursuant to FCA § 10 of proving child neglect of Joshua by Respondent by a preponderance of the evidence. All parties are directed to appear on September 16, 2011 at 9:30 a.m. for a dispositional hearing.

The foregoing constitutes the Decision and Order of this Court.

Dated: August 18, 2011

White Plains, New York

Hon. John P. Colangelo

Acting Family Court Judge