In the Matter
of Ivan S. A Child Under Eighteen Years of Age Alleged to be Neglected by
against
Irene S., Respondent
In the Matter of
Ivan S. A Child Under Eighteen Years of Age Alleged to be Neglected by
Oleg T., Respondent. File Number 8334 Docket Number NN-01172-13
|
NN-01171-13
DSS Attorney:
David E. LaPlante, Esq.
Franklin County Department of Social Services Legal Unit
355 West Main Street, Suite 333
Malone, New York 12953 Counsel for Respondent Irene S.:
Lorelei B. Smith Miller, Esq.
Franklin County Conflict Defender
355 West Main Street, Suite 252
Malone, New York 12953
Counsel for Respondent Oleg T.:
Peter A. Dumas, Esq.
453 East Main Street
Malone, New York 12953
Attorney for the Child:
Tammy L. Gordon, Esq.
Franklin County Children's Law Office
436 East Main Street
Malone, New York 12953
Robert G. Main, Jr., J.
Petitioner, Franklin County Department of Social Services (hereinafter sometimes
referred to as "the Department"), moves for an order granting it summary judgment in
both of the above-captioned child protective proceedings which have been brought
pursuant to article 10 of the Family Court Act. Based upon a theory of derivative neglect,
the Department asserts that a finding of neglect in the instant proceedings should be
made, as a matter of law, against both respondents, Irene S. (hereinafter sometimes
referred to as "the mother") and Oleg T. (hereinafter sometimes referred to as "the
father"), given the prior findings of neglect against each of them involving the siblings of
the subject child, "Ivan S.", who was born on November 9, 2013.
Procedural and Factual Background
Proofs of service on file with the Court indicate that the Department's
motion for summary judgment was duly served upon the attorneys for the mother and
father as well as upon the attorney for the child. The record reflects that timely responses
have been received from each attorney opposing the relief requested in the Department's
motion.
Initially, the Court takes judicial notice of the prior neglect petitions as well
as the [*2]ensuing orders of fact finding and disposition
and the permanency hearing orders entered in respondents' article 10 proceedings
involving the subject child's older siblings. The record reflects that the allegations
contained in the neglect petitions, sworn to on February 27, 2013, which led to the earlier
findings of neglect, mirrored one another. Specifically, it was alleged that respondents
failed to properly immunize one child and maintained deplorable and unsanitary home
conditions. Moreover, the petitions detail an incident of domestic violence between the
respondents wherein it is alleged that a shotgun being held by the father discharged and
that the resulting shot struck the mother's hand.[FN1]
As indicated in the orders of fact finding and disposition, on August 2, 2013,
respondents consented to a finding of neglect based upon the allegations contained in the
petitions. The orders continued the children's original, temporary placement with the
Department and imposed conditions of supervision upon the respondents. Separate
orders of protection were also entered. The orders also scheduled a permanency hearing
for October 25, 2013. In the interim, the mother was granted unsupervised visitation with
the children, at the discretion of the Department, and was permitted immediate overnight
visitation with the two (2) younger children. On the other hand, the orders prohibited the
father from having any visitation with the children.
As indicated above, a consolidated permanency hearing was held on October
25, 2013. As a result, new permanency hearing orders were entered continuing the
children's placement with the Department. However, the established permanency goal for
each child being return to parent, the two younger children were trial discharged to the
mother. The eldest child remained placed at St. Margaret's Center in Albany, New York,
as a result of the special care he requires due to his medical condition. The permanency
hearing orders also continued the prohibition on the father's visitation, based upon the no
contact temporary orders of protection issued in the father's pending criminal
proceeding.
The subject child in this proceeding was born on November 9, 2013. Neglect
petitions were thereafter filed on December 2, 2013. In these petitions, it is asserted that a
finding of derivative neglect should be made with regard to the infant Ivan, primarily
based upon the findings of neglect made in relation to Ivan's older siblings. Additionally,
it is alleged that the mother, having been discharged from Adirondack Medical Center
the day after Ivan's birth, failed to notify the Department that she was going into labor. It
is further alleged that the mother failed inform the Department as to who was caring for
her other children while she had spent the night in the hospital.
Moreover, in the petition against the mother, it is asserted that the
Department's caseworker, Jeremiah Pond, spoke to the mother by phone on November
12, 2013, and that she did not take the opportunity to inform the caseworker that she had
given birth to the subject [*3]child. According to the
petition, the Department did not learn of Ivan's birth until November 12, 2013, when
caseworker supervisor, Jody Southworth, contacted the mother to inquire of her plans for
the other children while she was having her baby. The mother allegedly informed Ms.
Southworth that she had already had her baby and that Ivan was at home and in the
mother's care.
In addition to the allegations, which according to the Department warrant a
finding of derivative neglect, the petition against the father also asserts that he presents
with significant service needs relating to his mental health issues, potential substance
abuse, and limited English proficiency. The petition against the father further avers that
he has been incarcerated since the day his children came into foster care and that he is
awaiting trial on criminal charges, stemming from the alleged shooting, which potentially
expose him to more than twenty-five (25) years of imprisonment.[FN2]
It is further asserted that, if convicted, the father may face deportation.
The Department alleges that, at the time of the filing of the instant petition
against the father, he had not completed any of the recommended services included in the
prior permanency hearing order. Additionally, there is an allegation regarding an incident
which occurred on September 11, 2013, when caseworker Pond met with the father at the
Franklin County Jail in an attempt to discuss his case. It is alleged that the father was
uncooperative with the caseworker and abruptly ended the meeting, indicating that he did
not wish to have further meetings with the caseworker.
The Legal Framework
"It is by now settled that despite the lack of an express provision in the
Family Ct Act authorizing the use of summary judgment in an article 10 proceeding, the
use of such procedural device is well established" (Matter of Hannah UU., 300
AD2d 942, 943 [3d Dept 2002] see generally Family Court Act
§ 165 and Civil Practice Law and Rules § 3212). Nevertheless,
summary judgment is a "drastic procedural device" which should only be used "in a
neglect proceeding where no triable issue of fact exists" (Matter of Xiomara D., 96
AD3d 1239, 1240 [3d Dept 2012]). "[I]ssue finding, rather than issue determination,
is its function", and where issues of fact remain, summary judgment must be denied
(Matter of Hannah UU., supra, 300 AD2d at 943 [internal quotation
marks and citation omitted]).
When dealing with issues of derivative abuse or neglect, section 1046 (a)(i)
of the Family Court Act provides that "proof of abuse or neglect of one child shall be
admissible evidence on the issue of the abuse or neglect of any other child of, or the legal
responsibility of, the respondent". Nevertheless, "there is no per se rule that a finding of
neglect of one sibling [*4]requires a finding of derivative
neglect with respect to the other siblings" (Matter of Jeremiah I.W., 115 AD3d 967 [2d Dept 2014], quoting Matter of Andrew
B.-L., 43 AD3d 1046, 1047 [2d Dept 2007]).
As recently noted by the Appellate Division, Third Department,
" [d]erivative neglect is established where the evidence demonstrates an
impairment of parental judgment to the point that it creates a substantial risk of harm for
any child left in that parent's care, and the prior neglect determination is sufficiently
proximate in time to reasonably conclude that the problematic conditions continue to
exist'" (Matter of Karm'ny QQ., 114 AD3d 1101 [3d Dept 2014] [internal
quotation marks and citation omitted).
Moreover, " [t]he focus of the inquiry ... is whether the evidence of abuse or
neglect of one child indicates a fundamental defect in the parent's understanding of the
duties of parenthood. Such flawed notions of parental responsibility are generally reliable
indicators that a parent who has abused one child will place his or her other children at
substantial risk of harm'" (Matter of Jeremiah I.W., supra, 115 AD3d at
967 [internal quotation marks and citation omitted).
Application of the Law and Analysis
The record reflects that respondents' prior findings of neglect were entered
approximately three (3) months prior Ivan's birth and that the underlying petitions were
filed within roughly four (4) months of the prior findings. As such, it is clear that the
prior findings of neglect are sufficiently proximate in time to support a finding of
derivative neglect in relation to the newly born Ivan (see generally Matter of Keith H., Jr., 113 AD3d 555 [1st
Dept 2014], holding that a prior finding of neglect occurring four months prior to the
filing of the derivative neglect petition was not too remote in time to support a reasonable
conclusion that the neglectful condition still existed).
Given the temporal proximity of the instant alleged conduct and proceedings
to respondents' prior findings of neglect, the sole remaining inquiry is whether the
evidence proffered by the Department demonstrates a fundamental lack of parental
understanding such that Ivan remains at a substantial risk of harm if left in respondents'
care. With regard to the father, his counsel asserts there to be triable issues of fact such
that summary judgment is not warranted. Specifically, the father's attorney seeks to
distinguish the factual circumstances of his client's case from the decisions cited by the
Department in support of its application for summary judgment.
Initially, counsel asserts that his client's case can be distinguished from Matter of Camarrie B., 107
AD3d 409 (1st Dept 2013) in that the older six children in Camarrie B.
remained placed in care through two permanency hearings and the respondent continued
to abuse marijuana and did not complete treatment as recommended. In contrast, in the
instant [*5]proceedings, counsel posits that, although
respondents' children remain placed with the Department, two have been trial discharged
to the mother and Ivan was never formally removed from her custody and care. The
father's counsel takes the position that these distinguishing factors, in and of themselves,
should defeat the Department's motion for summary judgment.
Father's counsel further avers that the instant proceedings are distinguishable
from the Matter of Keith H., Jr., supra, 113 AD3d 555, because the fact
finding in that proceeding was conducted upon that respondent's default. As such, the
respondent in Matter of Keith H., Jr. never formally acknowledged that her prior
behavior constituted neglect of her child. Counsel argues that, in the case at bar, the
father appeared before the Court and readily acknowledged his neglectful conduct.
Furthermore, the father's attorney attributes his client's reluctance to meet
and cooperate with the Department's caseworkers to the language barrier resulting from
the father's lack of proficiency in the English language. Counsel asserts that the "danger"
associated with this so-called "language barrier" "is that either side of such a
conversation could have such a misunderstanding that it would adversely affect the
respondent". As such, it is counsel's position that the lack of communication between the
father and the Department should not be used against him as evidence of his refusal to
engage in services.
The Court finds that the arguments made by the father's counsel are not
persuasive. Initially, the Court does recognize that, as a result of the October 25, 2013,
permanency hearing, two of the subject child's siblings were trial discharged to the
mother and that Ivan was never formally removed from her care. Nevertheless, in the
Court's judgment, these factors would militate against the imposition of summary
judgment against the mother but not the father.
The record reflects that the father has been incarcerated for the duration of
this proceeding as well as the previous article 10 proceedings. He is currently awaiting a
criminal sentencing relating to the domestic violence incident at issue and is exposed to a
prolonged sentence of incarceration and possible deportation. Moreover, the father has
not engaged in any recommended services and refuses to meet with his caseworker to
discuss the steps necessary to achieve reunification with his children.
The Court is compelled to address the argument that the father's refusal to
meet with caseworkers is attributable to his lack of linguistic skills in the English
language. The Court has observed the respondent in these Family Court proceedings, as
well as in the criminal proceedings where he is represented by the same counsel. While
the respondent father is not a native speaker of English, and while he may not be at all
proficient in technical legal terminology, justifying the utilization of a court provided
interpreter for these and the criminal proceedings, he appears to understand non-technical
English to the point of often offering answers to the Court's questions, and reacting to the
court proceedings, before any interpretation has been commenced or completed.
Moreover, the Court is not aware of any request by the [*6]father, or his counsel, for interpretation assistance in order
to comply with the dispositional orders in these proceedings.
It must also be noted that any claim by the father of his acknowledgment of
neglectful conduct is specious. The finding of neglect was based upon a consent and not
an admission. Whatever the motivations for the offering of a consent, rather than an
admission, may have been, they suggest a desire to avoid a collateral criminal
consequence rather than a desire to acknowledge neglect and correct defects in
parenting.
The attorney for the child also opposes the motion, although her
memorandum in support of her position is less vigorous on behalf of the father than it is
on behalf of the mother. The Court has considered it carefully but is not persuaded by it
as to the father.
Accordingly, having viewed the evidence in a light most favorable to the
father, the Court finds that there exists no triable issue of fact and that the Department
has made a prima facie showing of derivative neglect. As such, the Court shall
grant the Department's motion for summary judgment as it relates to the respondent
father. A dispositional hearing will be scheduled in the ordinary course of the Court's
business.
Moving to the petition against the mother, it is undisputed that two of the
children were trial discharged to the her care at the conclusion of the October 25, 2013,
permanency hearing. Moreover, the record reflects that Ivan has never been formally
removed from her care. In her answering affirmation, counsel for the mother argues that
there exist triable issues of fact which should preclude the granting of summary judgment
against her. Specifically, counsel relies upon the holding in Matter of Karm'ny
QQ., supra, 114 AD3d 1101, for the proposition that "[w]hile proof that
respondent previously neglected three other children was admissible on the issue of
whether he neglected Karm'ny ..., such proof alone typically is not sufficient to establish
derivative neglect".
The mother's counsel further relies upon Matter of Karm'ny QQ.,
supra, where the Appellate Division opined that a triable issue of fact existed
relating to whether a
parent was appropriately dealing with the conditions leading to the previous
neglect determination. Accordingly, counsel takes the position that the extent of the
mother's cooperation and engagement with the Department, in and of itself, constitutes a
triable issue of fact.
Counsel further argues that the mother has appropriately addressed the
circumstances giving rise to the prior findings of neglect such that a finding of derivative
neglect relating to Ivan is unwarranted. Moreover, she argues that the Department has
failed to show that the mother's parental judgment remains impaired.
In her Answering Affirmation, the mother's attorney asserts that the two primary
bases for the initial neglect petition — an unhabitable residence and domestic
violence between [*7]the co-respondents — have
been appropriately addressed by the mother. It is asserted that the physical condition of
the home has been rectified. Counsel attests that the home is now a clean and appropriate
environment in which to raise children which is the primary reason why the two younger
children were trial discharged to her.
With regard to the respondents' purported incident of domestic violence,
counsel argues that the father has been incarcerated since the incident's occurrence on
February 26, 2013, and, as such, Ivan has never been exposed to domestic violence. The
attorney for the child also notes that the mother was referred by the Department to a
program entitled "Stop DV Counseling and Assistance" where she worked with a
counselor.
Finally, the mother's attorney asserts that the mother flat-out denies trying to
hide Ivan's birth from the Department. Counsel argues that the mother's denial, in and of
itself, constitutes a triable issue of fact which defeats the Department's motion for
summary judgment.
The attorney for the child vehemently opposes the Department's motion as it
relates to the mother. She argues that, by the caseworkers' own admissions, the unsanitary
conditions of respondents' home have been rectified. With regard to the episode of
domestic violence, the attorney for the child argues that orders of protection are in place
prohibiting respondents' contact with one another. Moreover, she emphasizes that the
mother was the victim of the father's purported domestic violence and, despite the
mother's initial position that the incident was an accident, she has subsequently engaged
in domestic violence counseling and, as such, the problematic condition is no longer
present as to the mother.
The attorney for the child also asserts that respondents' reluctance to
properly immunize their one child "is not so egregious that her conduct demonstrates an
impairment of parental judgment". She argues that the child at issue suffers from severe
medical issues, and respondents' reluctance to have him immunized is not completely
unreasonable given his condition and the current controversy in our society regarding
proper and timely immunization. It is asserted that the Department's difference of opinion
regarding this child's medical treatment does not warrant a finding of derivative neglect,
particularly in light of the fact that Ivan does not suffer from any of the medical
conditions which afflict his affected, older sibling.
Having thoroughly reviewed and considered the submissions of counsel, the
Court finds that the Department has failed to demonstrate a sufficient justification for a
finding of derivative neglect, as a matter of law, upon the application of summary
judgment. There are issues of fact. It is alleged that the deplorable home conditions have
been rectified and that the mother engaged in domestic violence counseling. It is
contended that she actively participated in visitation with her two younger children in
preparation for their trial discharge to her and that she has made frequent trips to St.
Margaret's in Albany, New York, to visit with her other child who still remains placed
outside of her residence. Finally, the mother denies that she actively attempted to
withhold Ivan's birth from the Department and its caseworkers. As such, the
Department's motion for summary judgment, as it relates to the respondent mother, will
be [*8]denied.
Accordingly, and for the reasons set forth herein, it is hereby
ORDERED that the petitioner's motion for summary judgment as to
the respondent, Oleg T., be, and the same hereby is, granted; and it is
further
ORDERED that the petitioner's motion for summary judgment as to
the respondent, Irene S., be, and the same hereby is, denied; and it is further
ORDERED that, in conformity with the provisions of this decision
and order, the petitioner is directed to submit a proposed Order of Fact Finding in
relation to the respondent, Oleg T., within thirty (30) days after entry of this
decision and order; and it is further
ORDERED that proceedings with respect to the disposition upon
the finding of neglect as to the respondent, Oleg T., be, and they hereby are,
adjourned to the calendar of this Court on the 23rd day of May, 2014, at 9:15 a.m., or as
soon thereafter as counsel may be heard, and that proceedings with respect to a fact
finding as to the respondent, Irene S., be, and the same hereby are, adjourned to
the same date and time.
ENTER____________________________
Family Court Judge
Dated at Malone, New York, this 13th day of May, 2014.
cc:Franklin County Department of Social Services Legal Unit
Peter A. Dumas, Esq.
Franklin County Conflict Defender
Tammy L. Gordon, Esq.
Footnotes
Footnote 1:The Court notes that the
respondent, Oleg "T.", entered a plea of guilty to a felony criminal charge arising from
this incident on May 12, 2014, and, pursuant to a negotiated plea, will be sentenced to
state prison.
Footnote 2:As noted, the criminal
proceedings have been resolved, and a state prison sentence is contemplated.