Matter of Tysean P. v Richard S.

[*1] Matter of Tysean P. v Richard S. 2013 NY Slip Op 50837(U) Decided on May 21, 2013 Family Court, Kings County Wan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2013
Family Court, Kings County

In the Matter of a Proceeding Under Article 10 of the Family Court Act, Tysean P. Children Under Eighteen Years of Age Alleged to be Neglected by

against

Richard S., Respondent.



N 02091/13



Frank St. Jacques, Esq. for the Petitioner, Administration for Children's Services

Laura Maslauskas, Esq. for the child, The Legal Aid Society, Juvenile Rights Practice

Lillian Wan, J.

In this Article 10 child protective proceeding, the issue before the court is whether the Administration for Children's Services (hereinafter Petitioner) has established a prima facie case of neglect against the respondent father, Richard S. Based on the evidence presented at the fact finding hearing, this court finds that the Petitioner has failed to establish a prima facie case of neglect against the respondent father. Accordingly, the petition must be dismissed.

PROCEDURAL AND FACTUAL BACKGROUND

On January 18, 2013, the Petitioner commenced the instant child protective proceeding against the respondent father. The petition alleges that the respondent failed to provide the subject child, Tysean P., age 1, with proper supervision and guardianship in that on or about January 14, 2013, the respondent father slapped the non-respondent mother, Jalisa P., on her face while she was holding the subject child in her arms and forcibly grabbed the child from her arms. As a result the non-respondent mother sustained injuries to her left eye. The petition further alleges that there are three NYPD domestic incident reports involving the respondent father and the non-respondent mother as victim, dated January 6, 2011, December 12, 2011, and May 3, 2012. The petition further alleges that the respondent father misuses a drug or drugs and is not voluntarily and regularly participating in a rehabilitation program in that on or about [*2]January 10, 2013, the respondent father was smoking marijuana and his uncle was smoking crack cocaine in the presence of the subject child. Upon the filing of the petition, the subject child was temporarily released to the care of the non-respondent mother. After the Petitioner made approximately nine attempts to personally serve the respondent father, the court authorized substituted service. Service was deemed complete on the March 7, 2013, and the matter was set down for fact finding against the respondent. On April 22, 2013, the respondent father defaulted, and the case proceeded to fact finding in his absence.

At the fact finding hearing, ACS presented the Oral Report Transmittal (hereinafter intake report) dated January 10, 2013 (Petitioner's 1) and the testimony of ACS caseworker Ms. Latoya C.[FN1] The intake report was called in by Myiesha S. from Community Counseling & Mediation and alleges that the non-respondent mother sells her food stamps for cash to buy marijuana and that she smokes marijuana and gets high while caring for the subject child. The intake report further alleges that the mother tested positive for marijuana in the past, that there is sale and use of crack around the child, and the home is filthy, unsanitary and unhealthy. The intake report contains no direct allegations regarding the respondent father. The ACS caseworker testified that she observed the non-respondent mother on January 15, 2013 to have a 2-3 inch bruise around her left eye. The ACS caseworker further testified that she spoke to the respondent father on the telephone on April 6, 2013. During the course of that conversation, the respondent father stated that he slapped the mother in the face while arguing. The respondent indicated to the caseworker that the child was present in the room but not in the mother's arms. The caseworker also testified that when she spoke to the respondent about the allegations of drug use, the respondent stated that both he and the non-respondent mother use marijuana but not crack. In response to the court's questions, the caseworker testified that she only had a short conversation with the respondent and she did not ask the respondent how long he had been using marijuana, how frequently he used marijuana or whether the respondent was participating in a drug treatment program at the time of the filing of the petition. At the conclusion of the caseworker's testimony, the Petitioner rested, and the Petitioner and the Attorney for the Child delivered oral summations. Upon reviewing the evidence, the court re-opened the fact finding and adjourned the matter for the testimony of the non-respondent mother, Jalisa P. Counsel for the Petitioner indicated that the non-respondent mother was subpoenaed to come to court but she failed to appear. The court indicated that it had received a telephone call from Odyssey House, where the mother resides with the subject child, indicating that the mother could not come to court today because she had to take the baby to the hospital. The matter was adjourned to May 15, 2013.

On May 15, 2013, the non-respondent mother again failed to appear. An ACS caseworker also failed to appear on that date, however counsel for the Petitioner indicated that he was informed by the caseworker that the non-respondent mother would not be coming to court. Counsel indicated that he was prepared to rest on the last date, April 22, 2013, and that he was again resting but wanted an opportunity for additional oral summations. This application was granted and the court heard supplemental closing arguments from Petitioner and the Attorney for the Child. The Attorney for the Child joined the arguments of the Petitioner and supported a [*3]finding.

LEGAL ANALYSIS

To establish neglect, ACS has the burden to show, by a preponderance of the evidence, that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the parent's failure to exercise a minimum degree of care in providing the subject child with proper supervision or guardianship. F.C.A. §1012(f)(i). The Court of Appeals has held that imminent danger "must be near or impending, not merely possible." Nicholson v. Scoppetta, 3 NY3d 357, 369 (2004).

The Petitioner has failed to meet its burden of proving that the respondent father has neglected the child on the grounds of domestic violence committed against the mother. As the Court of Appeals has further noted, "[e]xposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment." Id. at 375. For there to be a finding of neglect, there must be harm or potential harm to the child, not just "undesirable parental behavior." Id. at 369. Petitioner has failed to prove the causal connection between the father's actions in this case (slapping the mother in the face) and the child's impairment or imminent danger of impairment. Id. The respondent father's vague statement over the phone to the ACS caseworker that the infant child was present in the room when he slapped the mother is not sufficient to support a finding of neglect. Furthermore, although the petition alleges prior domestic violence disputes between the respondent father and the non-respondent mother, the Petitioner has failed to proffer any evidence regarding these alleged prior incidents. No proof of a pattern of domestic violence has been shown. Matter of Larry O., 13 AD3d 633 (2nd Dep't 2004). The Petitioner's argument on summation that the slap could have escalated and resulted in further impairment to the child is too attenuated based on the limited evidence presented and calls upon the court to impermissibly speculate as to the "possible" danger. Nicholson, 3 NY3d at 369. See also Matter of Isaiah D., 2010 NY Slip Op 51837(U) (Family Court Bronx County 2010) (dismissing neglect petition for failure to make out a prima facie case because evidence established only a mere possibility of danger to the child); Matter of Devin N., 62 AD3d 631 (1st Dep't 2009) (finding that the mere fact that the child was in a locked room with a person who appeared to be intoxicated does not establish imminent danger of impairment); Matter of Anna F., 56 AD3d 1197 (4th Dep't 2008) (father's admissions that he drank alcohol or used drugs while the children were asleep not sufficient for finding; family court erred in finding neglect because of the possibility that the children could wake up or need to be taken to the emergency room in the middle of the night).

Counsel for the Petitioner argues that the Appellate Division's decision in Matter of Andrew Y., 44 AD3d 1063 (2nd Dep't 2007), is controlling in the instant case because a single act of domestic violence in the presence of a child can be the basis for a neglect finding. The court notes that Andrew Y. is inapposite in that it contains no explanation of the underlying facts and there is no information on what specific act of domestic violence was committed. While the court agrees that an isolated incident of domestic violence committed in the presence of the child can form the basis for a finding under the Family Court Act, such a finding would be improper in the instant case, and against the weight of the case law, as the Petitioner has failed to establish the causal connection between the father's conduct and the actual impairment or imminent danger of impairment of the child. Nicholson, 3 NY3d at 369. [*4]

Similarly, the Petitioner has failed to meet its burden of proving that the respondent father has neglected the subject child on the grounds of drug misuse. The only proof that the Petitioner has offered in support of the drug allegation is the respondent's vague statement to the caseworker that he and the mother smoke marijuana but not crack. Ms. C., the only ACS witness, did not even ask the respondent questions about how frequently he uses, or how long he has been using. There was also no testimony elicited about where the respondent father uses marijuana or whether the respondent father was ever under the influence of drugs while in the presence of the child. Ms. C. also failed to ask the respondent father whether he is voluntarily and regularly participating in a drug treatment program.

The Petitioner has failed to establish a prima facie case of neglect against the respondent father because there was no evidence that he repeatedly misused drugs to the extent that it would ordinarily have the effect of producing a "substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality." F.C.A. §1046(a)(iii). No causal connection between the respondent father's unspecified marijuana use and the impairment or imminent danger of impairment to the child's physical, mental or emotional health has been established. Matter of Anastasia G., 52 AD3d 830 (2nd Dep't 2008) (petition dismissed where only evidence proffered was ACS caseworker's testimony that father admitted, during a telephone conversation, that he used drugs without any specifics about what type of drugs the father used, the duration, the frequency, or whether he was ever under the influence of drugs while in the presence of the child).

While the court is entitled to draw the strongest negative inference against the respondent father for his 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., 906 N.Y.S.2d 780 (Kings County Family Court 2010).

Based on the foregoing, the court finds that the Petitioner has failed to establish a prima facie case of neglect in the instant case. Accordingly, the petition is dismissed. This constitutes the decision and order of the court.

Dated: May 21, 2013

______________________________

Hon. Lillian Wan, JFC

Footnotes

Footnote 1:The court will only consider the competent testimony of the ACS caseworker. F.C.A. §1046(b)(iii).