Matter of E.N. (Melanie N.)
Annotate this CaseDecided on June 9, 2017
Family Court, Orange County
In the Matter of E.N., J.N., M.N. and C.N. Children under 18 years of age alleged to be neglected by Melanie N., Respondent.
NN-3795/3798-16
Christine Stage, Esq. Senior County Attorney, for the Department of Social Services
Michele Neusch, Esq. for Respondent Melanie N.
Kristy Horaz, Esq. of Children's Rights Society, Attorney for the Children
Victoria B. Campbell, J.
This action was commenced by Order to Show Cause on August 23, 2016, by the filing of a Child Neglect Petition alleging that Respondent N. left her minor child, E.N., age 2, inside a parked car, for approximately 30 minutes, while she went into a store. The Petition alleged that the car was not running and the windows were closed and it was determined that it was 88 degrees Fahrenheit outside and 112 degrees Fahrenheit inside the car. The police were called by a passer-by and ultimately the child was transported to the hospital. As a result of this, the New York State Office of Child Abuse and Maltreatment was notified and the Department of Social Services filed the current petition seeking that not only the child left in the car but that all of Respondent's children be adjudged neglected.
The parties appeared before this Court with Petitioner represented by Christine Stage, Esq, of the Orange County Attorney's Office, Respondent Melanie N. represented by Michele Neusch, Esq. and Kelli O'Brien, Esq., and the minor children represented by Kristy Horaz, Esq., of the Children's Rights Society.
A hearing was commenced on April 20, 2017, at which time Petitioner offered Officer Lauren Dunn, Officer Adam Zeilburger, EMT Eric Chatfield and EMT Lauren Hibler as witnesses. The hearing continued on May 8, 2017 at which time the Petitioner offered the testimony of Animal Control Officer Christopher McFarland. After McFarland's testimony, Petitioner requested an adjournment due to the unavailability of one of their witnesses. The [*2]adjournment was granted with the understanding that the case would not be further adjourned in the witness remained unavailable in the future. The parties next appeared on June 7, 2017, at which time Petitioner sought an further adjournment due to the continued unavailability of a witness. Such adjournment request was denied and Petitioner rested.
The parties next appeared on June 8, 2017, at which time Respondent made an oral application to dismiss Petitioner's case, arguing that after presentment of its entire case, the Petitioner failed to make out a prima facie case to support the allegations in the petition. The Attorney for the Child supported dismissal. That motion was denied, at which time the Attorney for the Child and Respondent made a second oral application, pursuant to FCA §1051(c), alleging that based on the evidence before the court, there was no need for further court intervention in this matter. The Court reserved decision on such motion and Respondent proceeded with her case.
Respondent offered the testimony of Fay Ciacci, of Orange County Children's Protective Services and Respondent Melanie N. At the conclusion of Respondent 's testimony, the matter was adjourned for continued presentment of Respondent's case. However, the Court now feels that the fact-finding hearing has proceeded to a point where it can fully address Respondent's motion to dismiss, pursuant to FCA §1051(c).
Legal Analysis
Family Court Act Section 1051(c) provides, "if facts sufficient to sustain the petition under this article are not established, or if, in a case of alleged neglect, the Court concludes that its aid is not required on the record before it, the Court shall dismiss the petition and shall state on the record the grounds for the dismissal." Based on the evidence presented by Petitioner, the court does find that the Department presented facts sufficient to sustain the petition. The evidence before the Court indicates that Respondent drove her vehicle to a shopping center in Newburgh, and thereafter left her infant son, E. N. [d.o.b. XX/XX/14] alone in the vehicle for over twenty minutes as she entered a store. A passer by noticed the child in the vehicle, alerted the police, and the child was retrieved from the vehicle, while Respondent was located inside the store. Respondent testified that it wasn't until the police officer brought her out towards her vehicle and specifically asked her if she left her child in the car, that she realized what had happened. Although the testimony before this court varied on the exact temperature of the vehicle at the time the child was retrieved, the evidence reveals in was a warm summer day. Courts have regularly found that young children left alone in a vehicle were in imminent risk of harm, despite the temperature of the vehicle or the intent of the parent, warranting a find of neglect. See, Matter of Serenity P., 74 AD3d 1855 [4th Dept. 2010]; Matter of Samuel D.-C., 40 AD3d 853 [2007].
However, the existence of neglect is not a bar to dismissal in a situation such as this where Respondent's error in judgment which constitutes neglect under the law, was an isolated incident and further involvement of the court and the child welfare system is unnecessary. See, Matter of Kailynn I., 52 Misc 3d 740 [May 3, 2016, Kings County Family Court]
The testimony of the caseworker Fay Ciacci, indicates that Respondent's home has been under the supervision of the agency for approximately 11 months, with no incident, no safety concerns, and no indication of a likelihood of future neglect. Further, Respondent mother has completed all services that would be part of any dispositional recommendations. [ see, In re [*3]Robert W., 30 Misc 3d 1231 (A) [2011, Kings County Family Court]. Further, the testimony of Respondent reveals that she is a stay at home mother of four children, and that she home schools her children and is very active in mother's groups and children's church groups. Due to extraordinary circumstances on the day of this incident, she brought her young son shopping with her at the last moment, although she had previously planned on running errands on her own. His car seat was placed in a seat different from that which it normally is in, and she did not have his diaper bag on the front passengers side of the vehicle, as she normally does when she is traveling with her children. Although she was unable to verbalize her remorse over the situation, her demeanor during her testimony revealed a mother who made a mistake and did not intend to harm her infant son, or any of her other children. Since the time of this incident, Respondent has been home with her four children and has been their sole care giver during the day while her husband works away from the home. There has been no concern expressed regarding the continuing care she provides her children, and she has remained active in outside organizations caring for children. Throughout the defense of this matter, Respondent's counsel has contended that this was an accident, and neither the Petitioner or any of its witnesses has suggested otherwise. The Attorney for the Children has similarly opined that Respondent did not act with any malicious intent.
Based on the foregoing, although facts sufficient to sustain a finding of neglect as alleged in the petition was established, the Court is nonetheless dismissing the petition pursuant to FCA §1051(c) as the facts before this court indicate that the incident on which the petition was based was an isolated one, the mother has been rehabilitated and has cooperated with the services provided, and there is no indication of a likelihood of future neglect. As such, and based upon judicial economy, further involvement of the court and the child welfare system is not necessary and this matter is being dismissed in the interest of justice.
Now therefore, and based on the foregoing, it is
ORDERED, that the Petition is dismissed in its entirety; and it is further
ORDERED, that the Temporary Order of Supervision entered by this Court on October 3, 2016 is hereby vacated.
Dated: June 9, 2017
Goshen, New York
HON. VICTORIA B. CAMPBELL
Family Court Judge
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