Matter of Ivan S. (Irene S.)

[*1] Matter of Ivan S. (Irene S.) 2014 NY Slip Op 50836(U) Decided on May 13, 2014 Family Court, Franklin County Main, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2014
Family Court, Franklin County

In the Matter of Ivan S. A Child Under Eighteen Years of Age Alleged to be Neglected by

against

Irene S., Respondent

In the Matter of

Ivan S. A Child Under Eighteen Years of Age Alleged to be Neglected by Oleg T., Respondent. File Number 8334 Docket Number NN-01172-13



NN-01171-13



DSS Attorney:

David E. LaPlante, Esq.

Franklin County Department of Social Services Legal Unit

355 West Main Street, Suite 333

Malone, New York 12953 Counsel for Respondent Irene S.:

Lorelei B. Smith Miller, Esq.

Franklin County Conflict Defender

355 West Main Street, Suite 252

Malone, New York 12953

Counsel for Respondent Oleg T.:

Peter A. Dumas, Esq.

453 East Main Street

Malone, New York 12953

Attorney for the Child:

Tammy L. Gordon, Esq.

Franklin County Children's Law Office

436 East Main Street

Malone, New York 12953
Robert G. Main, Jr., J.

Petitioner, Franklin County Department of Social Services (hereinafter sometimes referred to as "the Department"), moves for an order granting it summary judgment in both of the above-captioned child protective proceedings which have been brought pursuant to article 10 of the Family Court Act. Based upon a theory of derivative neglect, the Department asserts that a finding of neglect in the instant proceedings should be made, as a matter of law, against both respondents, Irene S. (hereinafter sometimes referred to as "the mother") and Oleg T. (hereinafter sometimes referred to as "the father"), given the prior findings of neglect against each of them involving the siblings of the subject child, "Ivan S.", who was born on November 9, 2013.

Procedural and Factual Background

Proofs of service on file with the Court indicate that the Department's motion for summary judgment was duly served upon the attorneys for the mother and father as well as upon the attorney for the child. The record reflects that timely responses have been received from each attorney opposing the relief requested in the Department's motion.

Initially, the Court takes judicial notice of the prior neglect petitions as well as the [*2]ensuing orders of fact finding and disposition and the permanency hearing orders entered in respondents' article 10 proceedings involving the subject child's older siblings. The record reflects that the allegations contained in the neglect petitions, sworn to on February 27, 2013, which led to the earlier findings of neglect, mirrored one another. Specifically, it was alleged that respondents failed to properly immunize one child and maintained deplorable and unsanitary home conditions. Moreover, the petitions detail an incident of domestic violence between the respondents wherein it is alleged that a shotgun being held by the father discharged and that the resulting shot struck the mother's hand.[FN1]

As indicated in the orders of fact finding and disposition, on August 2, 2013, respondents consented to a finding of neglect based upon the allegations contained in the petitions. The orders continued the children's original, temporary placement with the Department and imposed conditions of supervision upon the respondents. Separate orders of protection were also entered. The orders also scheduled a permanency hearing for October 25, 2013. In the interim, the mother was granted unsupervised visitation with the children, at the discretion of the Department, and was permitted immediate overnight visitation with the two (2) younger children. On the other hand, the orders prohibited the father from having any visitation with the children.

As indicated above, a consolidated permanency hearing was held on October 25, 2013. As a result, new permanency hearing orders were entered continuing the children's placement with the Department. However, the established permanency goal for each child being return to parent, the two younger children were trial discharged to the mother. The eldest child remained placed at St. Margaret's Center in Albany, New York, as a result of the special care he requires due to his medical condition. The permanency hearing orders also continued the prohibition on the father's visitation, based upon the no contact temporary orders of protection issued in the father's pending criminal proceeding.

The subject child in this proceeding was born on November 9, 2013. Neglect petitions were thereafter filed on December 2, 2013. In these petitions, it is asserted that a finding of derivative neglect should be made with regard to the infant Ivan, primarily based upon the findings of neglect made in relation to Ivan's older siblings. Additionally, it is alleged that the mother, having been discharged from Adirondack Medical Center the day after Ivan's birth, failed to notify the Department that she was going into labor. It is further alleged that the mother failed inform the Department as to who was caring for her other children while she had spent the night in the hospital.

Moreover, in the petition against the mother, it is asserted that the Department's caseworker, Jeremiah Pond, spoke to the mother by phone on November 12, 2013, and that she did not take the opportunity to inform the caseworker that she had given birth to the subject [*3]child. According to the petition, the Department did not learn of Ivan's birth until November 12, 2013, when caseworker supervisor, Jody Southworth, contacted the mother to inquire of her plans for the other children while she was having her baby. The mother allegedly informed Ms. Southworth that she had already had her baby and that Ivan was at home and in the mother's care.

In addition to the allegations, which according to the Department warrant a finding of derivative neglect, the petition against the father also asserts that he presents with significant service needs relating to his mental health issues, potential substance abuse, and limited English proficiency. The petition against the father further avers that he has been incarcerated since the day his children came into foster care and that he is awaiting trial on criminal charges, stemming from the alleged shooting, which potentially expose him to more than twenty-five (25) years of imprisonment.[FN2] It is further asserted that, if convicted, the father may face deportation.

The Department alleges that, at the time of the filing of the instant petition against the father, he had not completed any of the recommended services included in the prior permanency hearing order. Additionally, there is an allegation regarding an incident which occurred on September 11, 2013, when caseworker Pond met with the father at the Franklin County Jail in an attempt to discuss his case. It is alleged that the father was uncooperative with the caseworker and abruptly ended the meeting, indicating that he did not wish to have further meetings with the caseworker.

The Legal Framework

"It is by now settled that despite the lack of an express provision in the Family Ct Act authorizing the use of summary judgment in an article 10 proceeding, the use of such procedural device is well established" (Matter of Hannah UU., 300 AD2d 942, 943 [3d Dept 2002]; see generally Family Court Act

§ 165 and Civil Practice Law and Rules § 3212). Nevertheless, summary judgment is a "drastic procedural device" which should only be used "in a neglect proceeding where no triable issue of fact exists" (Matter of Xiomara D., 96 AD3d 1239, 1240 [3d Dept 2012]). "[I];ssue finding, rather than issue determination, is its function", and where issues of fact remain, summary judgment must be denied (Matter of Hannah UU., supra, 300 AD2d at 943 [internal quotation marks and citation omitted]).

When dealing with issues of derivative abuse or neglect, section 1046 (a)(i) of the Family Court Act provides that "proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent". Nevertheless, "there is no per se rule that a finding of neglect of one sibling [*4]requires a finding of derivative neglect with respect to the other siblings" (Matter of Jeremiah I.W., 115 AD3d 967 [2d Dept 2014], quoting Matter of Andrew B.-L., 43 AD3d 1046, 1047 [2d Dept 2007]).

As recently noted by the Appellate Division, Third Department,

" [d];erivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent's care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist'" (Matter of Karm'ny QQ., 114 AD3d 1101 [3d Dept 2014]; [internal quotation marks and citation omitted).

Moreover, " [t];he focus of the inquiry ... is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood. Such flawed notions of parental responsibility are generally reliable indicators that a parent who has abused one child will place his or her other children at substantial risk of harm'" (Matter of Jeremiah I.W., supra, 115 AD3d at 967 [internal quotation marks and citation omitted).

Application of the Law and Analysis

The record reflects that respondents' prior findings of neglect were entered approximately three (3) months prior Ivan's birth and that the underlying petitions were filed within roughly four (4) months of the prior findings. As such, it is clear that the prior findings of neglect are sufficiently proximate in time to support a finding of derivative neglect in relation to the newly born Ivan (see generally Matter of Keith H., Jr., 113 AD3d 555 [1st Dept 2014], holding that a prior finding of neglect occurring four months prior to the filing of the derivative neglect petition was not too remote in time to support a reasonable conclusion that the neglectful condition still existed).

Given the temporal proximity of the instant alleged conduct and proceedings to respondents' prior findings of neglect, the sole remaining inquiry is whether the evidence proffered by the Department demonstrates a fundamental lack of parental understanding such that Ivan remains at a substantial risk of harm if left in respondents' care. With regard to the father, his counsel asserts there to be triable issues of fact such that summary judgment is not warranted. Specifically, the father's attorney seeks to distinguish the factual circumstances of his client's case from the decisions cited by the Department in support of its application for summary judgment.

Initially, counsel asserts that his client's case can be distinguished from Matter of Camarrie B., 107 AD3d 409 (1st Dept 2013) in that the older six children in Camarrie B. remained placed in care through two permanency hearings and the respondent continued to abuse marijuana and did not complete treatment as recommended. In contrast, in the instant [*5]proceedings, counsel posits that, although respondents' children remain placed with the Department, two have been trial discharged to the mother and Ivan was never formally removed from her custody and care. The father's counsel takes the position that these distinguishing factors, in and of themselves, should defeat the Department's motion for summary judgment.

Father's counsel further avers that the instant proceedings are distinguishable from the Matter of Keith H., Jr., supra, 113 AD3d 555, because the fact finding in that proceeding was conducted upon that respondent's default. As such, the respondent in Matter of Keith H., Jr. never formally acknowledged that her prior behavior constituted neglect of her child. Counsel argues that, in the case at bar, the father appeared before the Court and readily acknowledged his neglectful conduct.

Furthermore, the father's attorney attributes his client's reluctance to meet and cooperate with the Department's caseworkers to the language barrier resulting from the father's lack of proficiency in the English language. Counsel asserts that the "danger" associated with this so-called "language barrier" "is that either side of such a conversation could have such a misunderstanding that it would adversely affect the respondent". As such, it is counsel's position that the lack of communication between the father and the Department should not be used against him as evidence of his refusal to engage in services.

The Court finds that the arguments made by the father's counsel are not persuasive. Initially, the Court does recognize that, as a result of the October 25, 2013, permanency hearing, two of the subject child's siblings were trial discharged to the mother and that Ivan was never formally removed from her care. Nevertheless, in the Court's judgment, these factors would militate against the imposition of summary judgment against the mother but not the father.

The record reflects that the father has been incarcerated for the duration of this proceeding as well as the previous article 10 proceedings. He is currently awaiting a criminal sentencing relating to the domestic violence incident at issue and is exposed to a prolonged sentence of incarceration and possible deportation. Moreover, the father has not engaged in any recommended services and refuses to meet with his caseworker to discuss the steps necessary to achieve reunification with his children.

The Court is compelled to address the argument that the father's refusal to meet with caseworkers is attributable to his lack of linguistic skills in the English language. The Court has observed the respondent in these Family Court proceedings, as well as in the criminal proceedings where he is represented by the same counsel. While the respondent father is not a native speaker of English, and while he may not be at all proficient in technical legal terminology, justifying the utilization of a court provided interpreter for these and the criminal proceedings, he appears to understand non-technical English to the point of often offering answers to the Court's questions, and reacting to the court proceedings, before any interpretation has been commenced or completed. Moreover, the Court is not aware of any request by the [*6]father, or his counsel, for interpretation assistance in order to comply with the dispositional orders in these proceedings.

It must also be noted that any claim by the father of his acknowledgment of neglectful conduct is specious. The finding of neglect was based upon a consent and not an admission. Whatever the motivations for the offering of a consent, rather than an admission, may have been, they suggest a desire to avoid a collateral criminal consequence rather than a desire to acknowledge neglect and correct defects in parenting.

The attorney for the child also opposes the motion, although her memorandum in support of her position is less vigorous on behalf of the father than it is on behalf of the mother. The Court has considered it carefully but is not persuaded by it as to the father.

Accordingly, having viewed the evidence in a light most favorable to the father, the Court finds that there exists no triable issue of fact and that the Department has made a prima facie showing of derivative neglect. As such, the Court shall grant the Department's motion for summary judgment as it relates to the respondent father. A dispositional hearing will be scheduled in the ordinary course of the Court's business.

Moving to the petition against the mother, it is undisputed that two of the children were trial discharged to the her care at the conclusion of the October 25, 2013, permanency hearing. Moreover, the record reflects that Ivan has never been formally removed from her care. In her answering affirmation, counsel for the mother argues that there exist triable issues of fact which should preclude the granting of summary judgment against her. Specifically, counsel relies upon the holding in Matter of Karm'ny QQ., supra, 114 AD3d 1101, for the proposition that "[w];hile proof that respondent previously neglected three other children was admissible on the issue of whether he neglected Karm'ny ..., such proof alone typically is not sufficient to establish derivative neglect".

The mother's counsel further relies upon Matter of Karm'ny QQ., supra, where the Appellate Division opined that a triable issue of fact existed relating to whether a

parent was appropriately dealing with the conditions leading to the previous neglect determination. Accordingly, counsel takes the position that the extent of the mother's cooperation and engagement with the Department, in and of itself, constitutes a triable issue of fact.

Counsel further argues that the mother has appropriately addressed the circumstances giving rise to the prior findings of neglect such that a finding of derivative neglect relating to Ivan is unwarranted. Moreover, she argues that the Department has failed to show that the mother's parental judgment remains impaired.

In her Answering Affirmation, the mother's attorney asserts that the two primary bases for the initial neglect petition — an unhabitable residence and domestic violence between [*7]the co-respondents — have been appropriately addressed by the mother. It is asserted that the physical condition of the home has been rectified. Counsel attests that the home is now a clean and appropriate environment in which to raise children which is the primary reason why the two younger children were trial discharged to her.

With regard to the respondents' purported incident of domestic violence, counsel argues that the father has been incarcerated since the incident's occurrence on February 26, 2013, and, as such, Ivan has never been exposed to domestic violence. The attorney for the child also notes that the mother was referred by the Department to a program entitled "Stop DV Counseling and Assistance" where she worked with a counselor.

Finally, the mother's attorney asserts that the mother flat-out denies trying to hide Ivan's birth from the Department. Counsel argues that the mother's denial, in and of itself, constitutes a triable issue of fact which defeats the Department's motion for summary judgment.

The attorney for the child vehemently opposes the Department's motion as it relates to the mother. She argues that, by the caseworkers' own admissions, the unsanitary conditions of respondents' home have been rectified. With regard to the episode of domestic violence, the attorney for the child argues that orders of protection are in place prohibiting respondents' contact with one another. Moreover, she emphasizes that the mother was the victim of the father's purported domestic violence and, despite the mother's initial position that the incident was an accident, she has subsequently engaged in domestic violence counseling and, as such, the problematic condition is no longer present as to the mother.

The attorney for the child also asserts that respondents' reluctance to properly immunize their one child "is not so egregious that her conduct demonstrates an impairment of parental judgment". She argues that the child at issue suffers from severe medical issues, and respondents' reluctance to have him immunized is not completely unreasonable given his condition and the current controversy in our society regarding proper and timely immunization. It is asserted that the Department's difference of opinion regarding this child's medical treatment does not warrant a finding of derivative neglect, particularly in light of the fact that Ivan does not suffer from any of the medical conditions which afflict his affected, older sibling.

Having thoroughly reviewed and considered the submissions of counsel, the Court finds that the Department has failed to demonstrate a sufficient justification for a finding of derivative neglect, as a matter of law, upon the application of summary judgment. There are issues of fact. It is alleged that the deplorable home conditions have been rectified and that the mother engaged in domestic violence counseling. It is contended that she actively participated in visitation with her two younger children in preparation for their trial discharge to her and that she has made frequent trips to St. Margaret's in Albany, New York, to visit with her other child who still remains placed outside of her residence. Finally, the mother denies that she actively attempted to withhold Ivan's birth from the Department and its caseworkers. As such, the Department's motion for summary judgment, as it relates to the respondent mother, will be [*8]denied.

Accordingly, and for the reasons set forth herein, it is hereby

ORDERED that the petitioner's motion for summary judgment as to the respondent, Oleg T., be, and the same hereby is, granted; and it is further

ORDERED that the petitioner's motion for summary judgment as to the respondent, Irene S., be, and the same hereby is, denied; and it is further

ORDERED that, in conformity with the provisions of this decision and order, the petitioner is directed to submit a proposed Order of Fact Finding in relation to the respondent, Oleg T., within thirty (30) days after entry of this decision and order; and it is further

ORDERED that proceedings with respect to the disposition upon the finding of neglect as to the respondent, Oleg T., be, and they hereby are, adjourned to the calendar of this Court on the 23rd day of May, 2014, at 9:15 a.m., or as soon thereafter as counsel may be heard, and that proceedings with respect to a fact finding as to the respondent, Irene S., be, and the same hereby are, adjourned to the same date and time.

ENTER____________________________

Family Court Judge

Dated at Malone, New York, this 13th day of May, 2014.

cc:Franklin County Department of Social Services Legal Unit

Peter A. Dumas, Esq.

Franklin County Conflict Defender

Tammy L. Gordon, Esq.

Footnotes

Footnote 1:The Court notes that the respondent, Oleg "T.", entered a plea of guilty to a felony criminal charge arising from this incident on May 12, 2014, and, pursuant to a negotiated plea, will be sentenced to state prison.

Footnote 2:As noted, the criminal proceedings have been resolved, and a state prison sentence is contemplated.