Matter of Dante W. (Norman W.)
Annotate this CaseDecided on February 2, 2014
Family Court, Bronx County
In the Matter of Dante W. A Child under Eighteen Years of Age Alleged to be Neglected by Norman W., Respondent.
NN-xxx/10
Alan W. Sputz, Esq.
Special Assistant Corporation Counsel
Administration for Children's Services
Family Court Legal Services
Bronx Family Court
900 Sheridan Ave., 6th Floor
Bronx, NY 10451
By:Mineh Givens, Esq.
Andrew Rossmer, Esq.
189 E. 163rd St.
Bronx, NY 10451
Counsel for Norman W.
Alexa Cato
Legal Aid Society, Juvenile Rights Practice
900 Sheridan Ave.
Bronx, NY 10451
Attorney for the Child
Erik S. Pitchal, J.
Following an earlier mistrial before a different judge, a fact-finding hearing on the merits of this child protective proceeding was conducted before the undersigned on July 2, 2013; October 2, 2013; October 29, 2013; and January 9, 2014. Counsel argued the case on January 24, and the Court reserved decision.
Petitioner's witnesses were ACS child protective specialist Jenai Faulk; the child's foster mother, Ms. Paula D.; and Ms. D.'s neighbor, Mr. Albert Gonzalez. The respondent testified on his own behalf, and also testifying for the respondent was his girlfriend, Ms. Juliana Rodriguez. The attorney for the child supports the petitioner's case and entered AFC Exhibit A into evidence, Mr. W.'s sworn testimony from the mistrial on November 29, 2012.The Court finds Ms. Faulk's testimony to be credible. She matter-of-factly reported the child's statements to her, her observations of injuries on his legs, and her conversations with Mr. W.. The Court notes that the respondent did not call the child for the purposes of cross-examination, and his out-of-court statements to Ms. Faulk are admissible under Family Court Act § 1046.
The Court finds Ms. D.'s testimony to be credible. While in theory she might have a motive to prevaricate based on her love for Dante and the consequences that would result if this case were dismissed, she was not directly challenged on this point by respondent's counsel and she presented as a credible reporter.
The Court finds Mr. Gonzalez's testimony to be credible. He provided an eyewitness account of a key incident, and he has no evident motive to lie.
The Court finds Ms. Rodriguez's testimony to be credible with respect to her report of the child's behavioral problems. To the extent she offered character testimony in support of Mr. W., the Court does not credit this evidence in light of her romantic relationship with him.
The Court finds Mr. W.'s testimony to be not credible with respect to the alleged incidents of excessive corporal punishment in light of the inconsistency in his story over time.
Based on the record submitted, the Court makes the following findings of fact and conclusions of law.
I.SUBSIDIARY FINDINGS OF FACT
The subject child, Dante W., was nine years old at the time the petition was filed, November 16, [*2]2010.
The respondent, Norman W., is Dante's father.
All relevant events occurred in Bronx County, New York.
Mr. W. separated from Dante's mother, Ms. A., when Dante was about five years old. At that point, Dante was in his mother's de facto custody, and Mr. W. had visits. Ms. D. got to know Dante and his father in the neighborhood, and sometimes Mr. W. would bring Dante over to spend time with her. When Ms. A. died unexpectedly, Ms. D. began to care for him full-time, through an arrangement worked out with Mr. W.. Under this agreement, which lasted approximately two years (from the time of Ms. A.'s death to the time this petition was filed), Dante lived with Ms. D.. Mr. W. would pick him up at around 7 in the morning on school days and walk him to the school bus, or to school. Mr. W. would also meet Dante at the bus in the afternoons, and care for him until around 7 in the evening when Ms. D. returned from work. Mr. W. also spent some time with Dante on weekend days. Mr. W. paid Ms. D. a few hundred dollars per week to care for Dante.
Two incidents occurred in November 2010 in which Mr. W. used physical force on Dante leading to bruises on the child's legs.
On or about November 3 or 4, Mr. W. and Dante were walking to the bus stop, and Mr. W. pushed the child down to the ground and kicked him. The child reported this to Ms. Faulk, and Mr. Gonzalez witnessed it himself. Father and son were having an argument about whether or not Dante should hold his own bookbag; Mr. W. shoved him so hard that the child fell down to the ground, whereupon Mr. W. kicked him and cursed him, and Mr. Gonzalez felt it necessary to intervene.
On another day that month, Mr. W. brought Dante to a liquor store over the child's objection. Dante reported to Ms. Faulk that he was complaining to his father about being in the liquor store, and his father pushed him to the ground and proceeded to kick him.
Ms. Faulk observed bruises on the child's leg, which Dante explained were caused by his father's actions during the above incidents.
Ms. D. also noticed bruising on the child, who also told her that they were caused by his father. No medical attention was needed or sought for the bruising.
Mr. W.'s explanation to Ms. D. was that Dante got the marks from bouncing around inside a [*3]shopping carriage. It seems implausible that a child of his age would ride in a carriage at all. At the first trial in this matter, Mr. W. testified that there was an incident one day in November 2010 on the way to the school bus stop in which Dante ran off from him and attempted to cross a street by himself. According to Mr. W., he implored Dante to stop, and the child did so suddenly and Mr. W. accidentally bumped into him. The child did not fall, and this was the only physical contact between them. However, in his testimony in the second trial, Mr. W. said that he grabbed the child by the bookbag to save him from being hit by a car, but that the child became enraged and started to kick him. Mr. W.'s denials of kicking the child or using excessive physical force are not credible.
Mr. W. admitted to Ms. Faulk that in May 2010, there was an incident in which he inadvertently kicked Dante in the shin when the child ran away.
Mr. W. engages in erratic and dangerous behavior due to excessive consumption of alcohol, and it causes fear in the child. Ms. Faulk visited his home and was denied access, but could detect the strong smell of alcohol from within the apartment. The child described his father as being "nervous, a crazy, and a drunk," meaning that he "drinks a lot." Ms. D. observed Mr. W. smelling of alcohol in the mornings when he would pick Dante up. On these occasions, he would act erratically, curse at the child, and act so poorly that eventually she barred him from entering the home and required him to meet the child outside of her house for pick-ups. One time, he was so drunkenly enraged that he began destroying her yard, throwing flower pots all around.
Dante had a severely negative reaction to his father. Dante frequently did not want to spend time with him. During the incident when Mr. W. was throwing Ms. D.'s flower pots around the yard, Dante was so afraid that he ran and locked himself in the closet. Mr. W. regularly cursed at him and called him names, declaring at times, "I can't take you and your autism today!" Mr. Gonzalez overheard Mr. W. screaming at and belittling the child in Ms. D.'s backyard while Mr. W. was attempting to teach his son baseball. Dante came home several times with his homework torn in half, attributing this to his father. For unknown reasons, Dante evidently attributes his mother's death to his father, and while this belief could color his reaction to otherwise innocent behaviors by his father, the record indicates that Mr. W. engaged in behaviors that were, of their own accord, unhealthy for the child's emotional well-being. The child's assertions about his father's actions are corroborated by Ms. D.'s and Mr. Gonzalez's direct eyewitness observations, and the negative impact on Dante's emotional state was credibly reported by Ms. D..
While there was no competent proof offered that Dante has autism, all witnesses concurred that he has significant behavioral problems.
II.ULTIMATE FINDINGS OF FACT
Mr. W. inflicted excessive corporal punishment on Dante. There was more than one incident that led to a bruise on the child, establishing a pattern and distinguishing Matter of Anastasia L.-D., 2014 Slip Op. 226 (2d Dep't. Jan. 15, 2014), relied on by respondent. The child's statements were sufficiently corroborated by eyewitness accounts, distinguishing Matter of Dezarae T., 2013 Slip Op. 7096 (3d Dep't. Oct. 31, 2013), relied on by the respondent.
Mr. W. misuses alcoholic beverages to the extent that he loses self-control of his actions. Multiple witness accounts establish his use of alcohol, his erratic behaviors, and a nexus between the two.
Mr. W. causes emotional and physical impairment of the child, and places the child at imminent danger thereof, based on bruises and the child's well-founded fear of his father. Multiple witnesses testified of the cursing, the screaming, and generally boorish behavior by Mr. W. which struck fear in the child, in addition to the evidence of bruising from his violence. An injury need not require medical attention to constitute impairment.
III.CONCLUSION OF LAW
Dante W. is a neglected child, within the meaning of Family Court Act § 1012(f)(i), due to the inadequate guardianship and supervision of his father Norman W.. The child may have been primed to dislike and even fear his father before any of the incidents described in the record, and the child's behavioral problems may make him unusually difficult to parent. However, a parent must parent the child he has, and not an idealized form of a child. Based on this record, Mr. W. fails to exercise the minimum degree of care and parenting required for this child.
A fact-finding order will enter.
Dated: February 2, 2014
_____________________________________
Hon. Erik S. Pitchal
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