On June 14, 2010, the respondent mother, Linda M., (hereinafter "respondent mother" or "mother") filed a motion for summary judgment seeking to dismiss the neglect petition filed [*2]against her. On June 21, 2010, the attorney for the child filed an affirmation in support of mother's motion for summary judgment. On June 21, 2010, the Administration for Children's Services (hereinafter "ACS") filed an affirmation in opposition to mother's motion for summary judgment seeking a dismissal. The Court entertained oral argument on the motion on June 22, 2010, and granted leave to file supplemental papers by June 29, 2010. The motion was marked fully submitted on June 29, 2010. This written decision incorporates this Court's findings and analysis.^[FN1]

On December 10, 2009, ACS had filed a neglect petition against the mother and

respondent father (hereinafter, "father"), John R., and requested a remand of the subject child, Kahlil, age 15, to the care and custody of the Commissioner of the Administration for Children's Services.The petition alleges that the respondents failed to exercise a minimum degree of care in supplying the subject child with education within the purview of FCA §1012 (f)(i)(a) and failed to provide adequate guardianship and supervision to Kahlil in that he has used marijuana for many years and continues to do so. ACS alleges as a result of his school absences, Kahlil is failing school and will have to repeat the 9th grade for the third time while maintaining zero high school credits. The petition also alleges that the parents have failed to take appropriate action, since they have neither provided an alternative education to their son nor met with school officials to discuss his absenteeism.

On December 10, 2009, the parties appeared before the assigned Judge and the case was adjourned to December 11, 2009, for a FCA §1027 hearing to determine whether the subject child would be at imminent risk if he were to remain in the care and custody of the respondents pending the final order of disposition. The §1027 hearing was heard by this Court on December 14, 2009 and December 15, 2009. This Court heard testimony from Owashala Saka, the ACS caseworker; and Michael Wilder, Kahlil's guidance counselor at his school. At the conclusion of ACS's case in chief, this Court found that based on the credible evidence presented, ACS failed to make a prima facie showing that Kahlil would be at imminent risk were he to remain in the care and custody of the respondents, pending the final order of disposition. The Court released Kahlil temporarily into his father's care and custody, where he had been living, while allowing the mother liberal, unsupervised visits.

The mother has now moved for summary judgment, seeking a dismissal of the neglect petition against her based on this Court's findings at the §1027 hearing. She argues in her motion that she did not neglect her son, because with the father she had sought a judgment for a finding that their son was a Person in Need of Supervision ("PINS"), pursuant to NY Family Court Act §712 (a) in 2008. On January 14, 2009, Kings County Family Court adjudicated Kahlil, age 14, to be a PINS because of his voluntary refusal to attend school, and ordered him to be placed on probation for twelve months. On April 14, 2009, Kahlil was unfavorably discharged from probation because he was not participating in services.

In support of her motion, the respondent mother has annexed a copy of this Court's §1027 hearing transcript. She specifically cites to portions of the transcript where this Court took judicial notice of the PINS filing, adjudication and disposition in which this teenager was placed [*3]on probation as well as his unfavorable discharge from probation for not complying with services.

The mother also contends that this Court acknowledged that the PINS case was filed on the parents' own volition and that had parental neglect been evident, the Court in the PINS proceeding should have substituted a neglect petition in place of the PINS petition pursuant to NY Family Court Act §716. The mother cites In re Richard C., 43 AD2d 862 (2d Dep't. 1974), in which the Appellate Division found that the failure to substitute petitions may amount to an abuse of the Family Court's discretion. Further, during the §1027 hearing, the caseworker testified that when the PINS petition was before the Family Court, ACS concluded there was no evidence to prove that the mother neglected Khalil's education.

The mother further argues that although she accepted an ACD on the neglect petition against her, her motion for summary judgment to dismiss the petition is not moot. In support of her argument, the respondent cites to In re Gina C., 138 AD2d 77, 85 (1st Dep't 1988). In Gina C., the appellant was challenging a subpoena requiring certain documents to be turned over in a juvenile delinquency case. The Family Court entered an ACD order while the appeal was pending, and the First Department held that the appeal was not moot since the case could be restored to the court's calendar.

The mother contends that she has exercised the minimum standard of care and did not neglect her son, because she had engaged in diversion services prior to the filing of the PINS case; however, when her teenager refused services, she and his father filed the PINS petition. Kahlil was adjudicated a PINS due to his failure to attend school and was then unfavorably discharged from probation because he refused to engage in services and to attend school. Therefore, Kahlil's's truancy is not a result of this mother's failure to exercise a minimum degree of care.

The attorney for the child is in support of the mother's motion for a dismissal and contends that the Family Court's involvement did not benefit this family at the time of the PINS case and further is not beneficial to this family in the present case. Counsel for the child contends that at the conclusion of the 2008 PINS case, when probation discharged Kahlil, the Family Court found that the family did not require the services of Family Court. In light of this finding, as well as the caseworker's testimony at the §1027 hearing that she had not observed any changes in the family since the adjudication of the PINS case, there is no need for Family Court involvement.

ACS contends that the respondent mother's motion for summary judgment should be denied. The agency argues that a PINS finding does not bar a finding of educational neglect and cites to In re Benjamin K, 28 AD3d 810 (3d Dep't. 2006), in which the child was adjudicated to be a PINS and subsequently was also found to be educationally neglected.

ACS further argues that there is a triable issue of fact as to whether the mother exercised a minimum degree of care in providing for Khalil. ACS maintains that after Kahlil was adjudicated a PINS, the mother took no further action to support his attendance in school. In addition, ACS contends that the mother and Kahlil were referred to three service providers: Brooklyn Bureau of Community Services, Family Dynamics, and Edwin Gould. However, both mother and child did not participate with any of the referred service agencies. In support of its motion ACS has annexed a copy of the §1027 hearing transcript, in which the caseworker testified that the mother refused to engage ACS, did not attend services conferences given by ACS and did not make efforts to gain assistance from ACS. [*4]

Lastly, ACS contends that the motion for summary judgment is moot and cites to Gaylord v. Fiorilla, 28 AD3d 713 (2d Dep't 2006).Further, ACS argues that the motion for summary judgment is moot because the mother states in her memorandum of law that she will persist in her efforts to see that her son obtains counseling, therapy and drug treatment.

The first issue the Court must address is whether the mother's acceptance of an ACD on the neglect petition renders moot her motion for summary judgment to dismiss the neglect petition. The First Department in In re Gina C., 138 AD2d 77 (1st Dep't 1988) held, "Even though the matter against respondent, as mentioned, was adjourned in contemplation of dismissal, pursuant to Family Court Act §315.3 (1), a proceeding adjourned in that manner may be restored to the calendar upon ex parte motion by the presentment agency, or upon the court's own motion, made at the time the order is issued or at any time during its duration. Therefore, we find that this matter is not moot, since we have not been informed that it has been actually dismissed." Id at 83.

In Matter of Marie B., 62 NY2d 352 (1984), the Court of Appeals found that an ACD is emphatically not a determination on the merits. "It isn't akin to a finding of parental neglect, but rather, it leaves the question unanswered (citations omitted). Upon the parents violation of the condition of the ACD order within the established time period the child protective proceeding formerly adjourned may be commenced." Id at 359.

ACS's reliance on Gaylord v. Fiorilla, 28 AD3d 713 (2nd Dep't 2006) is misplaced. In Gaylord, the Court held that claims alleging malicious prosecution are precluded when an accused accepts an adjournment in contemplation of dismissal. Clearly this holding holds no persuasive value in the matter before the Court. The mother is not alleging that ACS has maliciously prosecuted her; instead, she is moving the Court to dismiss the allegations against her.

Therefore, this Court finds that the mother's motion for summary judgment is not moot. The ACD order is not a determination on the merits. Nor is this matter concluded; it was merely adjourned in contemplation of dismissal on June 24, 2011. The case may be restored to the calendar at any time prior to June 24, 2011; as such, this case is still a pending matter, and a motion for summary judgment to dismiss is ripe.

Family Court Act § 712 defines a PINS as:

a person less than eighteen years of age who does not attend school in accordance with part one of Article 65 of the education law or who is incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child care or other lawful authority, or who violates sections 221.05,230.00 or 240.37 of the penal law.

Family Court Act §716 states:

On its own motion and at any time in the proceedings, the court may substitute a neglect petition under article ten for a petition to determine whether a person is in need of supervision.

In the case before this Court, the preponderance of the credible evidence clearly established that both respondents together pursued a PINS petition against their fourteen-year-old, truant and ungovernable son and although the father filed the petition alone, the mother was instrumental in the decision to bring a PINS case and had appeared in court at subsequent appearances on the PINS case. On January 14, 2009, the Family Court found that Kahlil is a [*5]Person in Need of Supervision because of his voluntary refusal to attend school. At no time during the PINS proceeding did the Court substitute a neglect petition for the PINS petition as is permissible pursuant to NY Family Court Act § 716.

The Second Department In re Richard C., 43 AD2d 862 (2nd Dep't. 1974) held that the failure to substitute petitions may amount to an abuse of the Family Court's discretion, since the court on the record stated that the appellant may be a neglected child. "The instant case is precisely the kind of case to which this provision was intended to apply." Id at 863.

The Court in In Re Lynette YY, 299 AD2d 753 (3d Dep't 2002) held, "We likewise find without merit respondent's contention that the JHO should have substituted a neglect petition for the PINS petition pursuant to FCA§ 716, as there is no evidence in the record that respondent's admitted truancy and tardiness was attributable to an act of parental abuse or neglect.'" Id at 754.

During the §1027 hearing, this Court heard from the subject child's guidance counselor, who indicated that when he met with Kahlil, the child smelled of marijuana and did not seem focused. (FCA §1027 Hr'g. Tr. December 14, 2009 12-13: 6-24, 3-8). The guidance counselor also testified that he met with the father twice when he was seeking a letter for Kahlil to be enrolled into another school. The guidance counselor testified, "I gave the father a letter to take to the enrollment center stating we felt our school had done everything we could to help Kahlil and we had not succeeded and that maybe another school environment would be the right thing for him." The guidance counselor then stated that the enrollment center did not grant the request and the father came back to him for another letter; the counselor stated that he was unaware of what happened with the second letter, and Kahlil was still registered at his school. The counselor also testified that the father brought him PINS paperwork. Yet the counselor was unaware that Kahlil was deemed to be a PINS, placed on probation, and that he admitted to being a truant. (FCA §1027 Hr'g. Tr. December 14, 2009 26-28: 5-25, 1-25, 1-3). The counselor further testified that he could not recall whether he made any specific referrals outside of school counseling to Kahlil or his family. (FCA §1027 Hr'g. Tr. December 14, 2009 Tr. 31: 17-25).

This Court also heard from the caseworker, who testified that on December 10, 2008 the child's school called in an ORT because Khalil had missed forty days of school. She testified that there was no evidence to prove that the mother neglected the child's education. (FCA §1027 Hr'g. Tr. December 15, 2009 14: 18-22). The caseworker also testified that the mother and Kahlil did not partake in the services referred by ACS; the father signed for services with Edwin Gould but because Kahlil was not in agreement with the services, an altercation occurred between Kahlil and his father. The police were then summoned. The caseworker stated that although she did not believe that the mother was present during the altercation, Kahlil had called his mother and she stated that she had signed for the services. (FCA §1027 Hr'g. Tr. December 14, 2009 51-52: 6-14, 2-22).

The caseworker stated that she knew that Khalil's father had sought ACS's help in putting Kahlil in foster care in 2008, but ACS refused to take the placement and could give no reasons why. (FCA §1027 Hr'g. Tr. December 14, 2009 47: 11-17). This Court then stated, "Do you agree it might be a little frustrating to a family, if they were seeking ACS's help before and didn't get the help?" The caseworker responded, "I do agree." (FCA §1027 Hr'g. Tr. December 14, 2009 48: 3-6). The caseworker further testified that even if Kahlil was placed in foster care with foster parents or at a DRC, there would be no guarantee that Kahlil would attend drug treatment as he could not be forced to attend. (FCA §1027 Hr'g. Tr. December 15, 2009 12: 1-7). The [*6]caseworker testified that both parents attempted to enroll Kahlil in Day Top outpatient drug treatment in the past (FCA §1027 Hr'g. Tr. December 15, 2009 9: 7- 13). In addition, the caseworker testified that since the adjudication of the PINS case, she has not observed any changes with respect to Kahlil and his family. (FCA §1027 Hr'g. Tr. December 14, 2009 67: 11-19); see also FCA §1027 Hr'g. Tr. December 15, 2009 18: 4-7).

ACS's reliance on In re Benjamin K, 2828 AD3d 810, 811 (3d Dep't. 2006), is distinguishable from the present case because in Benjamin K, the mother only filed a PINS petition after Tioga County Department of Social Services stated that they would withdraw the neglect petition against her if she agreed to file a PINS petition against her daughter. In the present case, the parents pursued a PINS petition against their son, Kahlil, by their own volition. This Court took judicial notice of the PINS case while illustrating that it was by the parents' actions that the PINS petition was filed and adjudicated. (FCA §1027 Hr'g. Tr. December 14, 2009 Tr. 21: 21-24).

This Court finds that based upon the credible evidence presented at the §1027 hearing, there is no triable issue of fact that the respondent mother has failed to exercise a minimum degree of care in supplying their teenage son, Kahlil with an education. This mother and father on their own volition pursued a PINS petition in Family Court, attended numerous court proceedings relating to the PINS case, and received adjudication that the subject teenager was a PINS and was unfavorably discharged by probation. Further, there was credible testimony that both parents tried to engage Kahlil in services for drug treatment and for other services, which the child refused.

ACS has recently conceded that Kahlil is still refusing services and not attending school, while under their supervision, and has subsequently agreed to no longer seek a finding of neglect against both parents but instead adjourn their cases in contemplation of a dismissal. ACS has been unable to get this teenager to cooperate with school or services. It is clear to this Court that the parents of this teenager tried to assist their son in going to school and to receive help for his substance abuse problem. They voluntarily went to ACS to seek assistance and when that did not work, they filed a PINS petition against their teenage son, who was adjudicated a PINS and placed on probation.Kahlil refused to comply with probation and with services and his father's attempts to force Kahlil to do so resulted in a physical altercation. When Kahlil failed to comply with the terms of the probation, the agency did not seek to revoke the order of probation and place this truant teenager; instead probation unfavorably discharged him wherein ACS later filed this instant neglect petition against the parents.

Accordingly, the mother's motion for summary judgment is granted as this Court finds that there are no triable issues of fact as to whether she neglected subject child pursuant to FCA §1012 (f)(i)(a)(b). The respondent mother's ACD order, issued upon consent, is hereby recalled and vacated. The petition against the respondent mother is hereby dismissed. The respondent father's case is adjourned to Part 17 for the dismissal of his case on June 24, 2011, absent a violation or an extension petition.

The foregoing constitutes the Decision and Order of this Court.

Dated: July 21, 2010

Brooklyn, New York

ENTER: [*7]

________________________________

Hon. Bryanne Hamill, JFC