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Child Protective Services Removed Child from Respondent’s Care

A New York Injury Lawyer said on 30 January 2007, at approximately 11:30 PM, New York City Children’s Services (hereinafter “NYCCS”) removed the subject children (child-one and child-two) from the care of the respondents without a court order pursuant to Family Court Act.

On 1 February 2008, NYCCS filed abuse petitions against both parents, respondents.

The petitions allege that, on or about 30 January 2007, respondent father inflicted excessive corporal punishment on child-one causing marks, bruises and two black eyes (head injury). Further, the petitions allege that in November 2007, respondent father hit child-one with a belt in the face causing bruising. In addition, the petitions allege that respondent mother failed to provide adequate care and supervision for child-one by allowing respondent father to remain in the home with the children after November 2007 when she learned that he had beaten child-one. Finally, the petitions allege that child-two is a derivatively abused and neglected child by virtue of the abuse of child-one. (The respondent-father is the father of child-two but not child-one.)

Was the respondent-father a person legally responsible for the care of the child-one?

In determining whether a respondent is “person legally responsible” under the statute, the court must consider such factors as the frequency and nature of the contact between the child and the respondent, the nature and extent of control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and respondent’s relationship to the child’s. A respondent will be deemed a “person legally responsible” even if he is not a parent, where, as here, he periodically resided in the same household as the child and was otherwise found at regular intervals in the same home and was involved in the ongoing care of the child.

In the instant case, child-one resided with respondent father for extended periods prior to the time the petitions were filed. During those periods, he was repeatedly found in the same household as the child and was involved in child-one’s daily care, supervision and discipline. He cared for her when respondent mother was not home. She called him “Daddy.” A Staten Island Personal Injury Lawyer said respondent father testified that during 2007, the parties resided together with both children at the homes of various family members, including the maternal grandmother and the paternal grandfather. The Court finds these facts sufficient to establish that respondent father was a “person legally responsible” for the care of child-one.

Did NYCCS establish a prima facie case of neglect against respondent-father?

A parent or person legally responsible is liable for the abuse of a child pursuant to Family Court Act when they inflict or allow to be inflicted upon such child, physical injury (or personal injury which may also arise from a birth injury or medical malpractice, etc.) by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or the protracted impairment of physical or emotional health or the protracted loss or the impairment of the function of any bodily organ.

On the other hand, the Family Court Act defines a neglected child as “one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of (respondent) to exercise a minimum degree of care”. A Suffolk County Personal Injury Lawyer said the physical impairment referred to involves a lower threshold of resultant harm than the serious physical injury required in abuse cases.

In the instant case, NYCCS is not required to prove a course of conduct. It is well-settled that a single incident may be sufficient to establish neglect where a parent fails to exercise reasonable care and as a result the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired. This is particularly true where the parent was aware or should have been aware of the intrinsic danger of their actions and the situation. (The allegations of abuse were dismissed.)

Did respondent-father neglect child-one?

It is the view of the herein Court, that the actions of the respondent-father were inconsistent with how a reasonable and prudent parent would have acted under the circumstances and that, as a result, the child’s physical, mental and emotional condition where impaired or placed at imminent risk of impairment; sufficient to establish neglect based on excessive corporal punishment. A reasonably prudent parent under these circumstances would not have struck a three-year-old child with a belt with sufficient force to leave marks. Even if the Court were to accept respondent’s assertions that he hit the child with the belt in the face by accident and that he only meant to hit her on the hand, the result would be the same since the force used was excessive and it resulted in marks on the child’s face and fear of respondent father. In addition, the risk that a three year old would move when she is threatened with a belt and therefore sustain bruising on some other part of her body is something that respondent knew or should have known was one of the inherent dangers of hitting a small child with a belt.

Did respondent-mother neglect child-one?

In the instant case, respondent mother was out of the home in November 2007, when respondent father hit three-year-old child in the face with a belt leaving a mark. Upon her return home, both respondent-father and child-one told her about what happened. Despite that knowledge, she failed to take any action to protect child-one and ensure that respondent father did not strike her again.

Furthermore, when respondent mother was first interviewed by NYCCS, she denied that the 2007 incident had taken place. Likewise, when child-one was first interviewed, she was reluctant to reveal what had happened. She told the caseworker that it was “a secret” and that “Mommy told me not to tell the truth.” Respondent mother did not testify at the fact-finding hearing. Accordingly, the Court draws the strongest negative inference against her that the evidence will permit, that is, that she realized child-one was at risk when she was with respondent father but failed to immediately take the necessary steps to protect her.

Since the allegations of abuse by respondent-father have been dismissed, the allegations that respondent-mother failed to protect child-one from abuse are likewise dismissed. Nevertheless, pursuant to Family Court Act, the Court amends the petitions to conform to the proof and enters a finding of neglect against respondent mother pursuant to Family Court Act based on her failure to take appropriate steps after the November 2007 incident to protect her daughter from future acts of excessive corporal punishment inflicted by respondent father.

Did NYCCS establish a prima facie case of derivative neglect against respondent-father as to child-two but not against respondent-mother?

Family Court Act provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of the respondent. Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding may be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under Family Court Act.

Nevertheless, although the statute requires that evidence as to the neglect of one child be considered on the issue of the neglect of another child in the home, such evidence is not conclusive and does not establish a prima facie case of neglect of another child in the parent’s care. In other words, the fact that one child has been neglected, standing alone, is insufficient without more to support a finding that the child’s sibling is also neglected.

The determinative factor is whether the nature of the neglect, notably its duration and the circumstances surrounding its commission evidences such a fundamental flaw in respondent’s understanding of the duties of parenthood that it can reasonably be concluded that the condition still exists. Unless the underlying finding provides a reliable indicator that the sibling’s physical, mental or emotional condition is in imminent danger of becoming impaired a finding of derivative neglect cannot stand.

After examination of the evidence presented, the Court concludes that respondent father derivatively neglected child-two, although respondent mother did not.

On the father’s neglect, the Court has considered that the underlying neglect is based on acts of commission by respondent father; the excessive corporal punishment inflicted by respondent father upon the three-year-old subject child was fairly serious and in response to minor infractions; the punishment inflicted by respondent father was not an isolated incident but a pattern that he believed was justified; respondent father introduced no evidence of his rehabilitation during the period prior to the conclusion of the fact-finding hearing and that he still has not addressed – let alone overcome – the problems that led to the filing of the original petition; and respondent-father, at the time that the fact-finding concluded, had not even started parenting skills or anger management – let alone completed them. Accordingly, even without direct evidence of neglect as to child-two, the Court finds that her physical, mental or emotional condition are at risk of impairment while she is in the care of respondent father.

On the mother’s neglect, NYCCS has failed to introduce sufficient evidence to establish a prima facie case of derivative neglect. In reaching this conclusion, the Court has considered that the underlying neglect by respondent mother is not based on her physical or sexual abuse of the child; not based on her inflicting excessive corporal punishment; not based on a course of conduct; instead, it is based on a limited incident when she failed to protect child-one from further acts of corporal punishment despite her knowledge of the November 2007 incident.

In other words, the circumstances surrounding the original neglect do not evidence a fundamental flaw in respondent-mother’s understanding of the duties of parenthood. Although respondent-mother’s conduct toward her daughter child-one fell below a minimum degree of care when she failed to take action to protect her after the November 2007 incident, her conduct on that occasion is not a reliable indicator that any other child in her care is at imminent risk of impairment. Indeed, the evidence adduced is to the contrary and the Law Guardian supports the dismissal of the derivative allegations. The mother’s failure to testify is insufficient to establish derivative neglect since the underlying finding does not provide a reliable indicator that child-two’s physical, mental or emotional condition is in imminent danger of becoming impaired.

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