Matter of D.J. (Leeann K.G.)

[*1] Matter of D.J. (Leeann K.G.) 2015 NY Slip Op 52033(U) Decided on December 22, 2015 Family Court, Jefferson County Langone Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2015
Family Court, Jefferson County

In the Matter of D.J. and J.J. Children Under Eighteen Years of Age Alleged to be Neglected By

against

Leeann K.G. and Alan J.



XX/15



Arthur Stever, Esq., Jefferson County DSS

John W. Hallett, Esq., for Respondent

Justin F. Brotherton, Esq. for Respondent

Melissa L. Koffs, Esq., Attorney for Children
Eugene J. Langone Jr., J.

This is Fact-Finding hearing on a Petition filed by the Jefferson County Department of Social Services on March 11, 2015 alleging neglect against Respondent parents, L K.G. and A. J., based upon alleged acts of neglect regarding the subject children: D.J. and J.J. The petition alleged neglect of the said children by impairment of their physical, mental and/or emotional conditions or potential impairment as the result of the failure of the Respondents to provide them with proper supervision and guardianship pursuant to Family Court Act §1012(f)(i)(A)(B). The parties appeared with counsel and the matter proceeded to Trial, having occurred on four separate Trial days.

In support of its case-in-chief, the Jefferson County Department of Social Services called M.T., the principal at the children's elementary school. Principal M.T. knows the parties, having previously been Respondent/Mother's physical education teacher. His testimony reflected Respondent/mother attended a pre-K meeting in May of 2014 and the child D.J. began attending his school for kindergarten. During September of 2014, he saw the child several times and found the child's negative behavior to escalate in September of 2014 in the classroom. Respondent/Mother indicated to the principal in a conversation, "AJ. threw away the medications." During October of 2014, the child's behavior continued to be problematic in the classroom. Respondent/Mother indicated, "A.J. refused to put her back on the medications." The Principal indicated he probably spoke to the child three to four times per month and the child was late two to three times per month. The issues in September, including the child not listening and defiance in the classroom resulted in referrals made to the principal's office. In the fall of 2014, Respondent/L K.G., indicated to the principal that she was afraid of Respondent/A.J. and that A.J. threatened to kill her. The Principal indicated she seemed afraid of A.J.. In follow-up matters, Principal M.T. testified that A.J. precluded the Nurse from speaking with the child. A.J. indicated to the school he was going after the Nurse's license for seeing the child. The principal indicated concerns for the amount of food sent with the child.

By the end of September 2014, A. J. indicated to the Principal that he wanted a different [*2]teacher for his child. The Principal made attempts at calling a meeting, however, A.J. refused, indicating, "If I come in, it won't be good." Police were involved; apparently having been called by A.J. on the school and/or teacher. In October of 2014, issues continued with the child, D.J., as stated above. The police were brought to the school by A.J. hoping to investigate the teacher, Ms. G., for alleged abuse of his daughter. During that investigation was the first time Principal M.T. actually spoke to A.J. with A.J. relenting to leave the child in Ms. G.'s class. The child D.J.'s behavior continued to be disruptive to all there.

On cross-examination, the child's school journal was received as Respondent's Exhibit A. The witness indicated A.J. indicated some issues with the teacher which occurred in their respective youths. The teacher indicated to the Principal that she did not know him. The assignment of that teacher was continued. The witness testified during conversations with L K.G., there were no outward signs of spousal abuse upon her. Upon further cross-examination, Respondent's Exhibit B and attendance record was marked and discussed but not received. The child was sent home with lice on December 22nd per the attendance record. The Principal discussed issues with D.J. stealing as various items which were found by the teacher in her bag or on her possession. Although, noted that D.J. had also been a victim of theft. Upon AFC cross-examination, the Principal indicated that he was aware the parents were concerned and not happy with D.J.'s teacher placement and that is why he wanted a face-to-face meeting. Respondent, L K.G., indicated, "A.J. won't talk to him" and "A.J. won't be happy." In any event, it appears that D.J. remained in the classroom from September 2014 until February 2, 2015 when L K.G. removed the child and moved with her to Gouverneur to reside with a relative and the children. The Principal indicated that between September 2014 and February 2015, he recalled one or two face-to-face meetings with A.J.. First being at the Open House and the second when A.J. brought the police to the school. He indicated trying to meet with the parents multiple times and phoning multiple times to address A.J.'s concerns. Notes were used to refresh the witness's recollection regarding contact with the Respondents and the phone calls were not returned to Taylor. On further examination, the Principal indicated the lice is a common problem at schools and indicated the concern was more over D.J.'s behavior than the lice issue.

The next witness put forth by the Presentment Agency was S. L. L.G. of the Northern Regional Center for Independent Living. The witness is a family advocate dealing with resource support aspects and children's school issues. She is familiar with the matter based upon a referral with Respondent, L K.G., at the apparent request of L K.G.. The witness made contact with L K.G. on November 6, 2014 to discuss school issues that D.J. was having and ADHD issues. After that meeting, there was no further contact with Respondent L K.G. until again in January of 2015 when they met several times regarding D.J.'s needs and discussed ADHD medication issues. The witness transported Respondent, L K.G., to the Community Clinic on January 26, 2015. During that time, Respondent, L K.G., discussed an altercation with A.J. the night before that date. She indicated to the witness that A.J. would not let her out of the bedroom to use the bathroom, grabbed the hair of D.J. and threatened to kill her. The witness indicated she told Respondent, L K.G., she had to report this as a mandated reporter. Respondent, L K.G., indicated her understanding and the witness called Child Protective Services. On January 27th, Respondent, L K.G., called and asked what would happen. The witness testified referring Leeann to Adult Services in an attempt to get her out of this situation. The witness testified she [*3]came with Leeann to an initial court appearance occurring in February 2015. The witness testified that Leeann wanted to get out of the situation and she accompanied her for a stay away order of protection regarding A.J.. A temporary order was granted by this Court and further adjourn dates were given and the matter was assigned to a Referee. Regarding school issues, the witness was unsure where Leeann would relocate and the witness indicated that Leeann showed concerns that A.J. might come home and learn that this had occurred. The witness stated Leeann was emotional, indicating fear of A.J. due to controlling, bullying behavior. A March 2015 telephone conference occurred between the witness and Leeann. The witness testified that she went to the home approximately five to six times indicating she had never met A.J. and was unaware of any home safety factors. On cross-examination, the witness testified her main concern was that Leeann clearly wanted to get out as she was in an unhappy place and D.J. was not doing well.

J.L. testified next on behalf of the Presentment Agency. J.L. currently works with the Watertown Urban Mission. Prior to that position, she was a child protective caseworker with the Jefferson County Department of Social Services between January of 2014 and July of 2015. Her role in this case was as the CPS Investigator and she was familiar with the January 26, 2015 alleged incident report. Her testimony was that a report was received that A.J. had thrown away ADHD medications and would not allow his daughter to take same. It was further alleged that the child's school behavior had declined and that Respondent A.J. had dragged the child through two rooms. The caseworker visited the home on January 27, 2015 and conducted interviews. She was present along with Patrolman Ryan, Respondent, L K.G., and both children. In speaking with the mother, Respondent L. K.G. expressed concerns that A.J. was verbally abusive, calling her names in front of the children. She alleged A.J. flushed the child's medication and would not allow the child to take those medications. She alleged further that A.J. dragged the child through the home by her hair and then spanked her. The caseworker's testimony was that she spoke with the child, D.J., and that the child confirmed medications were flushed and that she had been dragged by the hair by her father, Respondent A.J. Respondent, L K.G., stated her daughter was somewhat hyper and was prescribed medications and she indicated her desire for the child to have therapy but Respondent A.J. would not let the child go to mental health therapy. The witness stated she observed less than adequate housing conditions and testified that Respondent, L K.G., stated wanting to leave this situation for a home in Antwerp and had been working with an advocate to do so; feeling it was not safe for her and the children to continue to reside here with A.J.. The witness stated she also visited the child's pediatrician, school personnel and school, meeting with the child D.J. on January 28, 2015. The witness testified that the child stated that (Daddy) A.J. had ripped up her toys and dragged her by the hair. The child indicated to the caseworker that mom and dad argue and push each other. The witness testified that Respondent, L K.G., subsequently moved to St. Lawrence County with the children to reside with her sister. A further report came to CPS alleging the children were dirty and that Respondent, L K.G., was rough with the child. Testimony included that on or around January 27th or January 28, 2015, the Child Protective Services witness had a telephone call with Respondent, A.J.. Respondent A.J. stated he disagreed with the ADHD medications, mental health therapy and did not want to be interviewed at the DSS building. Therefore, on January 28, 2015, the witness made a home visit with A.J. to discuss the concerns. Respondent, A.J., then [*4]stated his concerns regarding his wife, Co-Respondent, L K.G.. He stated L. K.G. had mental health issues, was a terrible housekeeper and a filthy pig. Respondent, A.J., at that time, focused his concerns upon the wife. The witness discussed several phone conferences with Respondent A.J., including a January 31, 2015, 4 ½ minute voicemail received from him. After January 31st, an interview occurred upon February 2, 2015 wherein then Respondent A.J. seemed supportive of D.J., indicating no amount of therapy can help her. At that time, the Child Protective Services witness testified, A.J. admitted grabbing the child by the hair but said he did not hurt her because he had taken Karate.

Witness L. continued contact with Respondent, L K.G., regarding her move. L. K.G. was looking for a trailer in St. Lawrence County and had spoken with the Gouverneur School District. She confirmed D.J. had been enrolled there and services were implemented with Northern Regional Center for Independent Living. The situation continued with Leeann in St. Lawrence County and the caseworker testified she encouraged Leeann to seek St. Lawrence County DSS assistance. However, in early March 2015, Respondent, L K.G., returned to Jefferson County showing up at the home of a friend, Beverly W.. Apparently this was for a period of two days. Caseworker testimony was that the children were filthy and in an alarming state. Then, the Agency filed a petition with the Jefferson County Family Court.

On cross-examination, the Child Protective Services witness confirmed on January 27, 2015, she was in the home for an hour and that Patrolman Ryan was doing a domestic incident report, wherein Respondent, L K.G., declined to press charges against A.J.. No physical apparent marks were found upon the child, D.J.. During the witness's meeting with A.J. on January 28, 2015 at A.J.'s home, indication was had that Leeann had left with the children to St. Lawrence County. The witness indicated that no photos of the home were taken on January 27th. She maintained follow-up with Respondent, L K.G., via phone. A subsequent Child Protective Services referral levied against Respondent, L K.G., made regarding conditions in St. Lawrence County found no issues at the sister's home.

Further cross-examination reflected Leeann's intent at the time of interview to leave in the morning and the AFC pointed out during her examination that Respondent L K.G.'s intent was to immediately move and she filed petitions against Respondent, A.J., for orders of protection; a 1034 was ordered and she had declined preventative services.

Trial continued on September 24, 2015 on the Agency's case-in-chief. Next called was witness, L.R., a therapist with Lucy's House. The witness provided therapeutic services and practices as a licensed MSW, focusing her treatment in cognitive and behavioral therapy. The witness provided services to D.J., effective April 2015, and undertook a trauma assessment. The witness spoke with both parents and found L K.G. more receptive to discussing problems than the father, A.J.. The witness stated the parents' concerns were that they felt the child did not need medication and there was no need for evaluations. The witness again met with D.J. in June of 2015 and weekly since June of 2015. The witness stated the child continues in counseling and is making progress.

On cross-examination, the therapist witness stated Respondent, A.J., denied any need for concern and rendered her opinion that the child's knowledge of nipples was out of the ordinary. On examination by the AFC, it was asked why the parents were not involved in that counseling and the witness stated A.J. requested closure saying there were no concerns and joint treatment [*5]would not be effective because the Respondents deny the allegations.

The next witness testifying on behalf of the Agency was M.T. M. T. is a Clinical Discharge Planner with Samaritan Medical Center stating on January 31, 2015, the witness saw Respondents, L K.G. and A.J.. Leeann had brought the two children to the Emergency Department at the hospital and this witness learned of complaints regarding Leeann yelling and screaming at both children. Apparently multiple persons were present so the witness was called in to assist. Respondent, L K.G., was placed in a room as a citizen had called the Child Protective hotline. The witness spoke with Child Protective Services and then advised Respondent, A.J. that Child Protective Services was involved. A.J. became irate, told the witness she was a liar in front of the children and asked regarding whether there was a warrant. A.J. then called the police himself, screaming at the child D.J., "See what you did?" "Now they will take you away." After A.J. called the police, the witness called the police as well. Respondent, L K.G., stated that an order of protection was being processed and that the Victim's Assistant Center was involved on her behalf. Respondent, L K.G., told the witness, "Don't tell A.J." Respondent, L K.G., was concerned for her safety and indicated to this witness that A.J. had been abusive toward her. The child, D.J., was crying. On police arrival, Leeann explained that he should not be around due to an order of protection being processed with the Victim's Assistant Center and the police escorted A.J. out. The hospital witness indicated L. K.G. said she had been afraid of A.J. on that date and time.

On cross-examination, the witness indicated that the total interaction was approximately three to four hours the evening of January 31, 2015. On further cross-examination, the witness stated she felt threatened by A.J.'s escalation and L. K.G. was left with the children. There was yelling and screaming and the matter involved four police officers. She indicated that A.J. yelled at D.J. in the patient room and the children were seen by a physician's assistant. On cross-examination by the Attorney for the Children, the witness testified that it is not typical for her to be called to the waiting rooms to intervene with patients and families. And, the witness reiterated her concerns were with A.J.'s response and reactions to events which occurred that evening.

Next testifying on behalf of the Agency was K. B.A.. The witness is a DSS caseworker and has been so employed for 3 ½ years. The witness became involved January 31, 2015 and is familiar with matters. The witness was on-call and received a report going to the hospital on January 31, 2015. Allegations included Respondent, L K.G., being rough with her son and her children being unclean. Apparently, Respondent, A.J., was in a separate room from the children. The Child Protective Services witness spoke with Leeann and the son and daughter. Respondent, L K.G., denied being rough with her son, John. The witness spoke with D.J. separately. D.J. was not afraid and the Child Protective Services witness indicated she did not see any major issues with that allegation. In speaking with A.J., A.J. stated the hospital had been trying to drug D.J. and that A.J. was stopping the drugging through calling the police. The Child Protective Services witness asked L. K.G. if she wanted to speak with A.J.. Respondent, L K.G., declined to speak with A.J. and the police required him to leave. Respondent, L K.G., stated, "A.J. would come after her." Further, that she was staying at a separate residence. Respondent, L K.G., indicated fear to the witness, seeming afraid. Respondent, L K.G., stated she had a court date coming Monday and did not want A.J. to know about it. On cross-examination, the testimony [*6]reflected the parents were in separate rooms and the children found unkempt with faint smells but nothing that would indicate danger. The witness did not interview people in the waiting room herself but reiterated that Respondent, L K.G., was visibly afraid and said A.J. had threatened her, not wanting to speak with the children's father. The testimony reflected the conclusion of the caseworker was that the children would be safe because they were going to a different residence and the mother, Respondent, L K.G., already had a court date forthcoming. The witness reiterated A.J. was directed to leave by law enforcement. The witness stated L. K.G. seemed frazzled and she had reservations whether Leeann was leaving with A.J..

The Trial continued for a third day on October 28, 2015. The Jefferson County Department of Social Services proceeded to call Beverly W. This witness resides on East Main Street in Watertown, NY and lives with her two children and has had a previous relationship with both of the Respondents. Apparently, A.J. has been a longtime family friend and L K.G. has been the witness's best friend at times in the past. Leeann was last to her home March 2015 on March 4th, 5th, and 6th, respectively. Respondent, L K.G., asked to stay with her during this period but apparently L. K.G. just showed up with the children indicating verbally she needed to stay with B.W. until shelter placement and was "in a hard spot." The witness then allowed the Respondent L. K.G. and the children into the home for a few hours. The witness found the child, D.J., infested with lice. L. K.G., thereupon, left her place without the children and was gone until approximately 2:00am and then returned at that early hour. The witness testified the children were dirty, unwashed and stunk. The witness indicated the next day, March 5, 2015, Child Protective Services became involved and apparently Respondent, L K.G., told Child Protective Services she was allowed to move in with Ms. W which was not true. The witness spoke to Child Protective Services and learned the situation and did not want to be in the middle of Leeann's conflict. The child, D.J., made statements to the witness indicating that her parents were mean to her and that Respondent, A.J., had dragged and hit her several times. On March 6th at 1:00pm, the children left the residence with Child Protective Services.

On cross-examination, this witness indicated that A.J. had been a long-term friend in times past and she had known Respondent, L K.G., since 2007. At some point prior, A.J. had banned this witness from their home but she occasionally got together with Respondent, Leeann. The witness testified as to her own prior protective history indicating a prior problem with alcohol which has been under control for approximately five years. On further cross-examination, the witness testified Respondent, L K.G., messaged her on March 4, 2015 indicating she could not stay any longer with her sister in Antwerp. The witness told her no, however, Leeann arrived at 4:00pm with nowhere else to go and thereby the short-term permission was granted by this witness for her to stay a bit. The witness testified she treated the lice found on the children. The witness indicated that when Respondent, L K.G., left for a period of time, it was with Mr. A.J.. Again, indicating she returned at 2:00am. The witness indicated that she had been trying to reach her with no success or explanation as to why she left the children there. The entirety of the stay at this witness's house, was approximately full day and a night. The witness indicated she called Child Protective Services because Respondent, L K.G., incorrectly told Child Protective Services she was allowed to stay at that home. In summary, this witness testimony reflected that Respondent, L K.G., showed up without real permission alleging an emergency situation needing help which was granted on a short term basis.

The above represents the Jefferson County Department of Social Services case-in-chief. A Motion for Dismissal was made and the Court reserved pending further testimony and proof.

The Respondent L K.G.'s case proceeded next. L K.G. took the stand. She is the mother of the children, J.J. and D.J.. In January 2015, she resided with A.J. in Watertown, NY in a two bedroom house. She indicated D.J. has a room and that John has a playpen in the parents' room. John has breathing issues. D.J. started school in September 2014 at the Kindergarten level. The witness indicated the child D.J. showers multiple times per day and that she does laundry daily. Respondent, L K.G., testified from September 2014 to January 2015, D.J.'s school attendance included being sent home a couple of times for lice from school which would be treated. The witness testified knowing Principal M.T. and in October 2014, M.T. told her that D.J. was not behaving, acting disruptive and once was suspended in school. The witness testified at home she does not have a lot of problems with the child but indicated in August 2014, the child was prescribed Clonidine and the parents eventually took her off that medication. Dr. V. was treating the child and discussed testing for ADHD and insomnia on or about January 20, 2015. The witness indicated the child was never diagnosed and L. K.G. got her into counseling with a counselor Rodriguez.

The witness continued and described on January 27, 2015, her interaction with J. L. of Child Protective Services who she indicated came to the house. L K.G. wanted to call A.J. because she was not comfortable. Law Enforcement advised her that she had to allow Child Protective Services in. Deputy R. was also present. L. K.G. was present with the children. L. K.G. declined to make any statements at that time. The report from Loomis indicated to the witness that it alleged that D.J. had been dragged by A.J. the previous Sunday, January 25th. Respondent, L K.G., testified D.J. was arguing with L. K.G. on the date in question and that A.J. grabbed her gently by the elbows but did not grab her hair "as she remembers." The witness indicated there were no marks on the children and the children were not removed at that time. Ms. L. referred her to the Victim's Assistance Center for a stay away order of protection. The witness testified she knew the allegations were false. The witness testified her relationship with A.J. was great and that when asked regarding domestic violence, she said, "No, never," and that they had been together since 2008.

The witness testified on January 28, 2015 she left the house to the Victim's Assistance Center indicating she was too afraid not to go there and said during her testimony that she felt pressured to file untrue allegations. On January 29th, the witness handed in paperwork and on February 2, 2015 she accessed this Court seeking a stay away order of protection against A.J. and temporary custody. She then moved to one A R.'s home in Antwerp, NY, a relative or old friend on or about Janaury 28, 2015 in St. Lawrence County. The child, D.J., was enrolled in the Gouverneur School District and she began looking for her own place receiving emergency food stamps. She resided in the A.R. residence with D.J. and J.J.. The witness then appeared subsequent to the stay away order of protection before Referee Trahan of this Court. At that time, Respondent, L K.G., sought to withdraw her stay away order of protection. Respondent, L K.G., stayed at that residence until March 4, 2015 at which point she went to an intake appointment at Jefferson County regarding D.J.. Apparently, things had gone poorly in Antwerp and she was displaced from that placement in the A.R. residence. Utilizing a cab and having no time to make a plan, L. K.G. left A.R.'s, called A.J. and messaged B.W. stating she arrived at [*7]B.W.'s home at approximately 6:00pm (referencing prior witness B.W.). Her testimony was that on arrival at B.W's at 6:00pm, she left thereupon at 7:00pm without the children. She stated B.W. gave her short term permission. She said she spoke with Child Protective Services L. and told her she would be there for one or two days. Her plan indicated A.J. taking the clothes to the house and perhaps going to the Victim's Assistance Center for homeless relief. She appeared on the March 6, 2015 pre-petition Court date (before Judge Langone), making a request to withdraw the order of protection against Respondent, A.J., which was denied. Respondents signed a 1021 voluntary placement with Child Protective Services L.. The witness's testimony went back to September of 2014 and she discussed A.G., the child's teacher indicating most of the communication was with A.J., per a log sheet. Respondent, L K.G., indicated the child, D.J.'s problems were stealing and misbehaving on a daily basis. D.J. lost recess and was sent to the principal's office. Respondent, L K.G., stated the principal made the child cry. She indicated the school wanted an October conference and the parties never went to school for a conference. She felt they were sending her home too often for lice which they were unable to find. The witness indicated her relationship with D.J. was good and that D.J. pushes her to her limits and often wants her father. Her testimony was that she utilizes time-out as a punishment. She denied she made any statements to harm her child and discussed activities she enjoy with her child. She stated she never saw A.J. hit the child. Reflecting on the January 27, 2015 Child Protective Services investigation, the witness testified it was focused upon A.J.'s conduct. She reflected she has a positive relationship with A.J. and has since 2008. Reflecting calling A.J. on the January 31, 2015 Samaritan Medical Center visit, she testified at the hospital that someone called Child Protective Services regarding her conduct there. The witness said D.J. sometimes throws herself on the ground and that nobody dragged her on that occasion.

Under cross-examination, this witness denied telling Principal M.T. about A.J.'s threats. This witness denied telling Principal M.T. about "trying to get out of the home." This witness denied telling concerns regarding the child D.J.'s medication and this witness further denied telling Principal M.T. that she was going to speak to NRCIL. The witness disagreed that she was concerned regarding A.J. finding out her intentions to move. This witness disagreed she told Child Protective Services she was afraid of A.J.. She acknowledged she filed an order of protection seeking a stay away order and custody against A.J. and acknowledged two years ago filing a petition for custody which was thereafter withdrawn. The Court took judicial notice of its prior proceedings under O-221-13, File No. 13073. The witness reflected she heard the testimony of M.T. and disagreed entirely with that testimony. The witness denied telling Child Protective Services that A.J. dragged the child; saying it didn't happen. The witness indicated she told the Victim's Assistance Center the fact scenario in the stay away order of protection application alleging specifically that all allegations are made up by Child Protective Services, Ms. L.. The witness stated that all allegations she put forth in sworn and submitted petitions are, at this time, untrue. She testified that witness A. lied and she was threatened by Child Protective Services indicating that all witnesses and petitions in this matter are false. She acknowledged a 2006 fraud conviction.

On further cross-examination by the Attorney for the Children, witness, Respondent, L K.G., stated A.J. primarily dealt with the school district and that A.J. went to the school with the police to have D.J.'s teacher arrested. She indicated that no conferences were had with school [*8]without police there. The witness admitted she swore to the allegations of the V & O petitions put before the Court and admitted that the petitions of two years prior were sworn as well. She admitted she did not go to a parent-teacher conference because she did not want things to escalate. The witness stated that in the 2013 O & V Dockets, she and A.J. had separated for four days. She indicated that she perceives herself as the primary caretaker and acknowledged throwing the medications out in the garbage herself.

Respondent, A.J., testified next. A.J. resides at Watertown, and has resided with Respondent, L K.G., for eight years. They separated in 2013 for four days as indicated by her previous testimony. They have two children, D.J. and J.J.. He testified D.J.'s medical care switched from the Alexandria Bay clinic to Watertown two years ago. J.J. was born at the Carthage hospital. They had a fire at their home on Shepard Street and reconstruction, he testified, has been completed by and large. They use kerosene heaters for power outages. He testified D.J. suffered a minor burn on her hand at some point. Regarding the case, A.J. testified he was never aware of a diagnosis of ADHD and said his daughter needed no treatment. He indicated she required sleep medications as the child was on his taxi hours which apparently involved her being up very late and then sleeping in. He testified he tried to adjust her for school but it was not working and the doctor suggested sleep aids. When Clonidine was prescribed, he felt they would overdose his daughter so he told Leeann to get rid of the medications. He indicated J.J. has ear problems and breathing problems and tubes were recently placed in the child's ears during Child Protective Services custody. Regarding the school situation, the witness testified he learned the teacher was named G. from Cape Vincent and knew "of" her. He was not happy with it and talked to M.T. about it, expressing his views that he knew her six years ago and deciding to let it see how it goes. He stated things started acceptably but things went worse. The witness testified that he felt the teacher had grabbed his daughter six weeks into the semester. In October 2014, A.J. went down to the school with the police department and wanted Ms. G. arrested. He felt Principal M.T. was protecting Ms. G. and indicated the school was not concerned with his daughter's hygiene. A.J. testified that after the "assault" as he described it, the school labeled his daughter as a thief. A.J. then accused the teacher, Ms. G., of putting items into his daughter's possession. He testified both parents prepare the children's meals and in January 2015, Ms. G. was still his daughter's teacher. He then proceeded to move the discussion onto January 27, 2015 when A.J. came home. He stated that the house was torn up and that there was water in the kitchen and that things had been thrown everywhere. His next contact with Leeann was a couple of days from then. On January 29, 2015, he received from Child Protective Services, J. L., to see Child Protective Services. He declined at that time. On January 30th, he met with Ms. L. at his home to discuss allegations of abuse/neglect of D.J.. A.J. denied the allegations explaining that it was D.J. and L. K.G. who were arguing, he grabbed her by the arm and then L. K.G. grabbed her by the hair. He stated L. K.G. threw her up next to her brother. He indicated only one time he tapped her on the butt and usually used time-out as his form of discipline. He admitted that he broke one or two of her toys as a form of discipline. Regarding the incident at Samaritan Medical Center, A.J. testified that L. K.G. called for help because D.J. was hyper. A.J. testified he called the police department upon Child Protective Services from the hospital.

Testimony continued for a fourth day on October 29, 2015. Respondent, A.J., remained [*9]on the stand; cross-examination ensued. A.J. testified he never flushed any medication and never dragged his daughter. Regarding the J.L. conversation, he testified he was sure he did not hurt the child and he overhead L. K.G.'s outburst regarding hurting the child but believe these were simply expressions. He indicated an O Docket was filed two years ago in this Court but could not recall the specifics. Respondent, A.J., testified that Respondent, L K.G., had a problem with telling the truth. A.J. reviewed a 2013 petition that he filed in this Court. In it he alleged Respondent, L K.G., was a liar. In it he alleged that Respondent, L K.G., was a safety risk and in it he alleged that she drank with medications. He testified the allegations were true and then testified he did not recall. A.J. admitted he broke the child's toys in an issue over a remote control. On cross-examination, the witness testified that the witness, B.W. (f/k/a B.P.), has not been allowed at his house for a couple of years and accused her of manufacturing lice accusations. Regarding punishing the children, he indicates he favors a "bribe" system with D.J. who he describes as hyper. A.J. felt she was too young to start school and that she would outgrow her hyper behavior. He denies any form of physical domestic violence, indicating he had a great relationship with his two children.

On cross-examination for the Attorney for the Children, he reviewed prior indicated reports from 2012 through 2014, most of which he could not recall and A.J. testified he did not attend the parent-teacher conference feeling it not proper because of "intimidation of a witness."

The last witness testifying was K.F. of Tupper Lake who has known A.J. for thirty years and L K.G. for eight years. K.F. testified he never saw anyone strike the children. K.F. testified basically as a character witness but having no direct knowledge of the facts at issue.

Written closing arguments were requested by the attorneys which were received by the Court on November 9, 2015 and reviewed in conjunction with this decision.

DECISION

In a Fact-Finding Hearing, the determination that the children are neglected must be based on a preponderance of the evidence. FCA §1046(b)(i). See Matter of Tyler S. 103 Ad.3d 731 (2013). There are two requisite elements for finding of neglect which must be established by a preponderance. First, "proof of actual or imminent danger of physical, emotional or mental impairment to the children." Nicholas v. Scoppetta 3 NY.3d 357 (2004) indicating in Nicholas, the requirement for a causal connection between the basis of the subject petition and the circumstances which produce the imminent danger of impairment." That requirement has been intended to focus neglect proceedings on potential harm to the children not simply upon undesirable parental conduct. Furthermore, any impairment, whether actual or imminent must be a consequence of parental failure in exercising a minimal degree of parental care. This tier of the analysis is whether a reasonable and/or prudent parent would have acted or failed to act under these circumstances or by unreasonably inflicting a substantial risk of harm to the child or children. It is a statutory minimum degree of care test. See further Matter of Afton C. 17 NY.3d 1 (2011).

In the above matter, the Jefferson County Department of Social Services has put forth a number of acts which they allege constitutes neglect. From the Court's perspective, the most salient factors are those of the domestic violence in the household. Indications of domestic violence in the Respondents' household come from the Co-Respondent L K.G., in her actions in seeking from this Court a stay away order of protection against A.J.. She sought the assistance of [*10]this Court on February 2, 2015 in requesting a temporary stay away order of protection against Respondent, A.J. Respondent, L K.G., submitted a sworn petition, was sworn in at the time of appearance indicating to the Court that the Respondent, A.J., had dragged her five year old daughter around the house by the hair. A Temporary Stay Away Order of Protection was granted for Respondent, L K.G., and the children and she was granted custody. Her testimony in this Trial indicates her efforts in seeking separate housing subsequent to that temporary order and the circumstances which led up to Child Protective Services involvement including a 1034 report requested by this Court. She maintained housing in Antwerp, New York and subsequently relocated to the City of Watertown, seeking shelter services. Removal occurred and she began to co-habit, once again, with Respondent, A.J.. Her testimony in this Trial indicated that, at the time of Trial, she was forced by various agencies, including the Victim's Assistance Center and Child Protective Services, to outright lie in her initial applications to the Court and that she requested the Court give no credence to her prior conduct. The testimony indicated, importantly, statements of the child made to Child Protective Services on or around January 27, 2015, wherein the child, D.J., confirmed being dragged by the hair, what the Court considers to be domestic violence. The Trial Court considers the statements of the child, D.J., to be corroborated by the actions of the Co-Respondent, L K.G., as well as her individual statements to Child Protective Services, Principal M.T., witness Gonzales and hospital staff regarding domestic violence occurring at the hands of A.J. as well as her seeking protective relief from the Court. Those previous statements made by the child relating to neglect are considered admissible and corroborated as a basis of this decision. FCA §1046(a)(vi). It is the Court's opinion and decision that Respondent, L K.G., took the appropriate action in seeking protective relief by her actions on February 2, 2015 due to legitimate concerns which were occurring in the L K.G./A.J. household. However, the Court finds her testimony, at Trial, to be without any credibility as to her earlier actions and finds her reconciliation with Respondent, A.J., and her willingness to place the children back into that situation of domestic violence, to be neglectful.

The testimony and actions of A.J. has shown him to be a controlling individual. The apparent status of this relationship shows that Co-Respondent, L K.G., having few options, has chosen to rather be in the unhealthy, chaotic environment and place the children in the same environment rather than follow up in a protective and appropriate manner for the children's sake. Again, the Court finds no credibility in the testimony that Respondent, L K.G., was forced, threatened or coerced to file against A.J. for domestic violence against the child nor does the Court place any credibility in her testimony that the February 2nd emergency hearing seeking a temporary stay away order was somehow due to the manipulation of outsiders, particularly given the fact that she relocated herself and the children to Antwerp, including enrolling D.J. in school there. The background testimony regarding the Respondents' actions at the school convince the Court, by a preponderance of the evidence, that A.J.'s actions towards the school district, while inappropriate, does not constitute the Court's basis for finding neglect in this matter. Rather, the Court finds that these actions served no benefit to the subject child's mental or emotional health and made no legitimate attempt toward getting D.J.'s difficult behavior in the classroom under control. The Court's belief that the domestic violence issues were legitimate also places credence to the testimony of witness Gonzales of the Northern Regional Center for Independent Living which discussed Respondent L K.G.'s attempts at seeking help for herself and her children. [*11]Further corroboration of the domestic violence issue was presented by statements of Respondent, L K.G., to Child Protective Services personnel regarding verbal abuse in front of the children and disposal of prescribed medications. Further, Respondent, L K.G., reaffirmed to Child Protective Services J.L. the child being dragged through their home by her hair by A.J.. The testimony of the medical center personnel also adds credence to Co-Respondent L K.G.'s fear of A.J. and his potential reactions to situations involving her and the children. The Court finds the testimony of witness B.W. to be credible as to those instances which occurred at her home prior to Child Protective Services removal.The testimony of Respondent, A.J., denied allegations of grabbing the child, D.J., indicating, in addition, that it was the child D.J. and mother Leeann who were arguing and he attempted to appropriately intervene. He described his daughter as hyper and not in need of the prescribed medications. He indicated he had involved the police department at both the school district and during Child Protective Services intervention at the hospital and further testified that Co-Respondent, L K.G., had a problem with the truth and acknowledged the prior filings against her. A.J. stated he broke the child's toys as a disciplinary mode. And in summary, denied any form of physical domestic violence; specifically denying the incident in question.

The Court finds that the allegations of neglect have been established by a preponderance of the evidence by the Jefferson County Department of Social Services against both Respondents, A.J. and L. K.G. regarding the children, D.J. and J.J.. Allegations regarding D.J. involve domestic violence committed upon her and the child John, is found to be a neglected child in accordance with FCA §1046(a)i derivatively. Matter of Joanne II 100 Ad.3d 1024 (2012). The Court herein finds neglect in accordance with FCA §1012(f)(i)(B) in that there has been actual and imminent danger of physical, emotional or mental impairment to the children and a causal connection shown between the acts of domestic violence producing serious risk of potential harm to the subject children by the Respondents' failure to exercise a minimum degree of parental care. Jefferson County Department of Social Services to prepare and submit order accordingly. The Department is further directed to reimplement twice weekly supervised visitation at the Department for the Respondents and further directed to re-offer appropriate services necessary for reunification.

December 22, 2015