Is a father who complied with all terms of a dispositional order suspending judgment entitled to vacatur of the consent neglect finding and dismissal of the petition filed against him? By motion brought by order to show cause filed September 21, 2007, Respondent Malcolm H., Sr. (Father) seeks an order vacating the consent neglect finding and dismissing the Family Court Act (FCA) Article 10 petition filed against him. Father's motion is granted as the Court finds both that Father successfully complied with the terms of the suspended judgment order and it is in the boys' best interests to vacate the finding. Since the Court's aid is no longer required on the record before it, the neglect petition filed on August 31, 2005 is dismissed.

Statement of Facts:

By petition filed August 31, 2005, Monroe County Department of Human Services (Petitioner) alleged that Father abused and neglected his four sons Malcolm H., Jr., Jonah H., Caleb H. and Noah H. and his two step-sons, the biological sons of co-Respondent Jennifer H. (Respondent), Makynli N. and Tajae W.. After Father consented to a neglect finding on July 26, 2006, the Court proceeded with a contested dispositional hearing (Family Court Act § 1052). Father requested that the Court suspend judgment pursuant to FCA § 1053 and both Petitioner and Law Guardian opposed such disposition. [*2]After hearing, the Court suspended judgment and supplemented its order with a written decision (Matter of M.N., 16 Misc 3d 499 [Fam Ct 2007]).

Matter of M.N. (id.) details the facts that led to the consent neglect finding. Briefly: Father became a single parent to two sons, Malcolm, Jr. and Jonah, through his union with Cassandra C. who passed away suddenly. He developed a relationship with Respondent and she moved with her two sons, Makynli and Tajae, from Arkansas to Rochester and the families blended. Father and Respondent then married and together had two more sons, Caleb and Noah. Father was a truck driver who was often away from home leaving Respondent as the primary caretaker for the six boys. On or about August 24, 2005, when Father was away working and Respondent was alone caring for the boys, Jonah was hospitalized with extensive neurological, shaking-associated injuries. Jonah's injuries are permanent and he currently resides at the Mary Cariola Children's Center, an educational and residential facility for children with multiple disabilities. The Court initially removed all six boys from Father and Respondent ^[FN1] and placed them in the home of Louis and Linda C., Cassandra's parents and maternal grandparents to Malcolm, Jr. and Jonah. The boys were released to Father on September 21, 2006 and Makynli and Tajae were placed in Father's care under Petitioner's supervision.^[FN2] The Court reviewed the proceeding six times over the suspension period (Family Court Act § 1053 [c]). During that time Father secured local employment so as to not be absent from the boys' lives.

The suspended judgment order expired on its own terms on July 6, 2007. Petitioner neither filed a violation petition nor sought to extend the order. Indeed, Petitioner admitted both that Father complied with the terms of the dispositional order and the boys were doing well in his care. Although the Law Guardian initially opposed suspension of judgment, she now supports Father's motion. Petitioner takes no position.

The Court heard testimony on October 25, 2007 from one witness, Father. He testified that his boys are thriving in his care. Malcolm, Tajae and Makynli are registered in school and received appropriate therapy. Father is investigating whether Caleb and Noah can be enrolled in Pre-Kindergarten. Father visits with Jonah at the Mary Cariola Center two or three times per week. All of the boys still visit with Louis and Linda C.. Father works nights at Geneer Security and cares for his sons during the day. He has applied for employment with the Federal Bureau of Investigation, Homeland Security and the Monroe County Sheriff's Office. Father testified that he complied with all terms of the suspended judgment order including completion of both parenting and anger [*3]management programs. He received both mental health and substance abuse evaluations and no follow-up treatment was necessary.

Statement of Law:

If a respondent fully complies with the terms of a suspended judgment order, the Court may vacate the finding and dismiss the underlying neglect petition if both it is in the children's best interests and the Court's aid is no longer required under FCA § 1051 (c) (Matter of M.N., 16 Misc 3d 499 [Fam Ct 2007] citing Matter of Jonathan B., 5 AD3d 477, 479 [2d Dept 2004], lv dismissed 2 NY3d 791 [2004]; see also Matter of J.R., 387 NJ Super 363, 374 [Superior Court, Family Part, Cumberland County 2006] ["a suspended judgment allows rehabilitative or supervisory services in lieu of a permanent adjudication of abuse and neglect when services can reasonably be expected to deter future abuse and neglect"] [emphasis added]).

Compliance with the terms of the Suspended Judgment Order

It is undisputed that Father complied with all terms of the suspended judgment order. Petitioner neither filed a violation petition pursuant to FCA § 1071 nor sought an extension of the dispositional order. Father testified that he complied with all ordered services.

Best Interests of the Boys

When the FCA Article 10 petition was filed against Father, Father was a truck driver who was on the road traveling for the majority of the week and away from his sons. The boys were abused by Respondent in the absence of Father; indeed Father's very absence precipitated his acts of omission in missing signs of abuse that the boys were suffering. Court regulations require that an order of suspended judgment direct the respondent to, inter alia, "refrain from or eliminate specified acts or conditions found at the fact-finding hearing to constitute or to have caused neglect. . ." (22 NYCRR § 205.83 [a] [1]). Here, Father ameliorated his neglectful acts of omission by being present in his sons' lives, including finding local employment.

Over the suspension period, Father obtained local employment working nights at Geneer Security. He currently seeks professional development and has applied for law enforcement positions - employment that necessarily entails background checks. Father wishes therefore to have his neglect finding vacated and the FCA Article 10 petition dismissed so that he may then seek administrative expungement of his name from the New York State Central Register of Child Abuse and Maltreatment (Central Register).

The Due Process Clause of the Federal Constitution requires Petitioner to substantiate reports of child abuse by a fair preponderance of the evidence before they may be disseminated to providers and licensing agencies as a screening for future employment (Matter of Lee TT v Dowling, 87 NY2d 699, 712 [1996], rearg denied 88 NY2d 920 [1996]). The burden of proof to establish neglect in family court is similarly a "preponderance of the evidence" (Family Court Act § 1051 [a], referring to Family Court Act § 1046 [b] [I]). A neglect finding in Family Court constitutes collateral estoppel barring a respondent from seeking an administrative expungement (Social Services Law § 422 [8] [b] [ii]; McReynolds v City of New York, 18 AD3d 316 [1st Dept 2005], lv denied 5 NY3d 707 [2005], cert dismissed 126 S Ct 748 [2005]). As this Court has found that Father is entitled to vacatur of the neglect finding, an administrative body may similarly [*4]find that Father is entitled to expungement of his name from the Central Register.^[FN3] This might allow Father to become employed in law enforcement.

The Court finds that it is in the boys' best interests that Father be afforded such professional development opportunities permitting him to be an everyday presence in his young sons' lives. The boys are thriving in Father's care and he is the only parent they have to rely on. The Law Guardian supports Father's motion as being in the boys' best interests.

Court's Aid

A court may dismiss a neglect petition where "its aid is not required on the record before it" (Family Court Act § 1051 [c]). In Matter of G. (91 Misc 2d 911 [Fam Ct, New York County 1977]), a neglect petition was dismissed where the court found "a normal, healthy and affectionate parent-child relationship. . . no danger of present or future neglect" and that respondent was rehabilitated (see also Matter of Angela D., 175 AD2d 244 [2d Dept 1991] [even though petitioner met its burden of establishing neglect, the aid of the court was no longer needed and dismissal of the case was warranted pursuant to Family Court Act § 1051 (c) where respondent mother had moved to Maryland and authorities there closed their file]; Matter of Arthur A., NYLJ, Sept. 26, 2000, at 32, col 4 [Fam Ct, Queens County]; Matter of Thomas, NYLJ, March 3, 2000, at 32, col 4 [Fam Ct, Queens County]; Matter of Hickey, 124 Misc 2d 667 [Fam Ct, NY County 1984] [court's aid was not required concerning allegations of educational neglect because the subject child, who had attained age sixteen was no longer subject to the compulsory education law]; cf. Matter of Lewis T., 249 AD2d 646 [3d Dept 1998]; Matter of Jessica S., 13 Misc 3d 505, 510-511 [Fam Ct, Kings County 2006]). Similarly here it is undisputed that Father has a strong relationship with his sons and that they are not in danger of neglect. As Father also successfully completed all services required by the suspended judgment order, he has demonstrated - even to Petitioner's satisfaction - that the Court's aid is no longer required.

Proposed Statutory Amendments

As a successful outcome was achieved for both Father and his sons by the suspension of judgment ordered as a matter of first impression, this Court would be remiss if it did not address proposed legislation that seeks to repeal this dispositional alternative. A bill is pending both in the New York State Assembly and Senate that would, inter alia, repeal Family Court Act § 1053 (2007 NY Senate-Assembly Bill A07379, S04540). The rationale behind this legislative proposal is twofold that: (1) a suspended judgment disposition is "unnecessary and redundant" in light of the Family Court Act § 1039 which provides that proceedings may be adjourned in contemplation of dismissal (ACD); and (2) children placed in foster care in conjunction with a suspended judgment may not be eligible for federal foster care reimbursement (Sponsor's Mem, ¶ ¶ 5, 6).

First, a suspended judgment disposition is not "unnecessary and redundant" in [*5]light of the ACD option. An ACD is issued "prior to or upon a fact-finding hearing"^[FN4] and must be consented to by all parties (Family Court Act § 1039 [a]; Matter of Brandon C., 219 AD2d 871 [4th Dept 1995], citing Matter of Gary B., 101 AD2d 1026 [4th Dept 1984]; Matter of Amlinger v Amlinger, 73 AD2d 1047 [4th Dept 1980] [an ACD is improper absent consent of the Law Guardian]). An ACD is not a finding of neglect but rather an adjournment of the proceeding in contemplation that the petition will be dismissed. Important, the Court or Petitioner may move to restore the matter to the calendar by proving that respondent has failed to observe the terms and conditions of an ACD order at which time, if the violation is proven, a fact-finding hearing will commence. To the contrary, a suspended judgment is ordered as a disposition after both fact-finding and dispositional hearings are completed. At disposition after a neglect finding, a court may (i) suspend judgment; (ii) release the child to the custody of his parents or person legally responsible for his care; (iii) place the child in foster care or with a resource; (iv) make an order of protection; (v) or place the respondent under supervision (Family Court Act § 1052).^[FN5] The parties need not agree on the disposition. Indeed, in the instant proceeding both Petitioner and the Law Guardian opposed the suspended judgment and a contested dispositional hearing ensued: Father thus could not have been afforded an ACD.

When a court suspends judgment it may further order any of the other alternatives under Family Court Act § 1052; thus a court may suspend judgment and either, inter alia, place a child or release a child to the care of his parent or person legally responsible for his care. This alternative is imperative because whereas a child may be placed under an ACD order only if there is "imminent risk" to the child's life or health (Family Court Act § 1039 [g] [allowing a placement with an ACD order pursuant to FCA § 1027]), there are circumstances where there is no imminent risk but the child is not ready to be released to his parent or person legally responsible for his care for a myriad of reasons. A suspended judgment permits placement of the child when such placement is in the child's best interests but imminent risk is not necessarily present. For example, here, Father's employment frequently required his absence and the boys' primary caretaker was incarcerated; fortunately there were relative resources in place - Louis and Linda C. - who cared for the boys during this time. Not all families have resources in place and a foster care placement may be the only alternative.

Although the Sponsor's Memo suggests that a placement under a suspended judgment is questionable because federal funding is at issue, a Court issuing a suspended judgment and ordering placement can make the requisite findings required by both New York State Law and Title IV-E of the Social Security Act (Family Court Act § 1055; 42 USCA § 671 [a]; see also 22 NYCRR § 205.81 [Procedures for Compliance with [*6]Adoption and Safe Families Act]). A suspended judgment, the least intrusive disposition under FCA § 1052, is a unique relief available for only rare cases (Matter of MN, supra, 16 Misc 3d 499). Such disposition should be ordered only when a release of the child to the care of his parent or person legally responsible for his care is projected to be accomplished within one year. If it is still contrary to the child's best interests to be returned home at the expiration of the suspension period, a court might extend the order for one year if exceptional circumstances exist (Family Court Act § 1053 [b]). Alternatively, petitioner might allege a violation of the suspended judgment order; if so proven, the court may revoke the suspended judgment and enter any other dispositional alternative that might have been made at the time judgment was suspended (Family Court Act § 1071 [different from a violation of an ACD order where petitioner first must prove a violation before the matter is restored to the calendar for a fact-finding hearing on the neglect petition]; see Matter of Marie B., 62 NY2d 352 [1984]).

Now, therefore, it is hereby

ORDERED that Respondent Malcolm H., Sr.'s motion is granted; and it is further

ORDERED that the consent neglect finding is vacated; and it is further

ORDERED that the neglect petition filed August 31, 2005 is dismissed.

Dated this 1st day of November, 2007, at Rochester, New York.

___________________________

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

Pursuant to §1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in Court, thirty-five days from the mailing of the order to the appellant by the Clerk of the Court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.