In the Matter
of . Shina R. (DOB 2/6/2007), A Child Under Eighteen Years of Age . Alleged to be
Neglected by Jeanette R., Respondent.
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NN xxxx/12
For the Administration for Children's Services:
Jamie Spillane, Esq.
Bronx Family Court Legal Services
NYC Administration for Children's Services
900 Sheridan Avenue, 6th Floor
Bronx, New York 10451
For the Respondent Mother:
Emma Ketteringham, Esq.
Family Defense Practice
The Bronx Defenders
360 E. 161st St.
Bronx, NY 10451
For the Child:
Kristin Kimmel, Esq.
Lawyers for Children, Inc.
110 Lafayette Street, 8th Floor
New York, New York 10013
Robert Hettleman, J.
This written decision memorializes the decision I made on the record in Part 16 on
December 15, 2014, following a fact-finding trial on the allegations in the petition. For
the reasons described on the record on December 15, as well as for the reasons below, I
find that the petitioner, the Administration for Children's Services ("ACS"), has proven
by a preponderance of the evidence that the subject child, Shina R., is a neglected child
as defined in FCA § 1012(f) and was neglected by her mother, Jeannette R.
I. PROCEDURAL HISTORY
On December 27, 2012, ACS filed this Article 10 petition in Bronx Family Court,
alleging that the Respondent Mother, Ms. R., neglected the subject child, Shina R. (DOB
2/6/2007) in that:
The respondent did not have stable housing, and refused to enter the shelter
system or accept other housing assistance offered by ACS in the preceding six to seven
months.
The respondent did not have adequate income to care for Shina, in that she
had not received public assistance funds over the prior six months, even though she had
been provided with information about public assistance, and she did not have any other
stable source of income.
An amended petition was filed in March, 2013, with additional allegations:
That, as a punishment, the respondent forced Shina to strip naked and stand
with her arms extended, exposed to others who were in the home.
That respondent emotionally neglected Shina, in that: the respondent told
Shina that she ruined the respondent's life and that she wished she had never had her; the
respondent shamed the child when the child could not write her name and when the child
cried and ran to her for comfort, the respondent told her to stop crying; and Shina
reported that when she resided with the respondent, the respondent was always angry that
she needed to take care of Shina.
In addition, at the conclusion of fact finding, ACS asked the court to
conform the pleadings to the proof to include the following additional allegations that
emerged through records and testimony at trial:
That Ms. R. disciplined Shina with a belt on previous occasions, that Ms. R.
used marijuana, and [*2]that Shina witnessed domestic
violence and sexual activity between Ms. R. and her boyfriend.
That Shina appeared "undernourished;" that upon placement in foster care,
after two months in her mother's exclusive care,[FN1]
Shina was hungry, dirty, and had bug bites "all over her body."
Fact finding commenced on May 4, 2014, and continued on May 12, May
16, July 23, August 6, and October 8, 2014. As noted, I rendered an oral decision on the
record on December 15, 2015, and I entered a Dispositional Order in court that
day.II. THE EVIDENCE AT TRIAL
At
trial, ACS called (1) Child Protective Specialist Marie Skyers; (2) Shina's former
therapist, Dr. Steven Loomis; and (3) Ms. C.R., the respondent's former foster mother,
who is now Shina's foster mother as well. In addition, ACS entered into evidence (1) an
Oral Transmission Report ("ORT") dated June 25, 2012; (2) foster care agency case
records; and (3) Dr. Loomis' curriculum vitae.
a. The ORT
In pertinent part, the ORT, entered into evidence as Petitioner's 1, stated that
Ms. R. did not have provisions for the child, had no income, and was verbally abusive
toward the child, in that she yelled at her, telling her to shut her mouth, and telling her
that Shina had ruined her life.
b. CPS Ms. Skyers
CPS Skyers testified at length to her multiple contacts with Ms. R., starting
from the date of the ORT, June 25, 2012. On that day, Ms. Skyers made a home visit to
the residence of Ms. R.'s cousin in the Bronx, where Ms. R. and Shina were staying. Ms.
Skyers testified that, during a private interview with Shina that day, the child told her that
Ms. R. regularly told her to shut up and had hit her on the hand with a belt. At that time,
Ms. Skyers observed a mark on Shina's eyebrow and marks on each of her knees, but no
injury to either of the child's hands. During that same visit, Ms. R. told Ms. Skyers that
she had applied for public assistance but that it had been [*3]denied. Ms. R. indicated that her only income came from
periodically braiding hair and occasional from help from friends, family members, or Ms.
C.R. The respondent also told Ms. Skyers that the cousin, with whom she and Shina were
staying, was in the process of moving out of that apartment. Ms. R. acknowledged that
she did not know when the move would occur or where she and Shina would reside next.
The respondent also conceded to Ms. Skyers that she and the child did not have any
housing of their own, but that in addition to staying on occasion with her cousin, Ms. R.
and the child sometimes stayed with Ms. R.'s sister in Queens or with the foster mother,
Ms. C.R., in Long Island. Ms. R. went on to state that her plan for obtaining housing was
to go with Ms. C.R. to the Department of Housing on Long Island in order to enter the
shelter system there.
Ms. Skyers' next contact with the respondent was on June 29, 2012, and on
that day, Ms. R. told her that she was in the process of getting into a shelter in Long
Island. Ms. Skyers asked Ms. R. to contact her with her placement and contact
information, and Ms. R. agreed to do so. However, Ms. R. did not contact Ms. Skyers
again until July 6, 2012, and Ms. Skyers was unable to contact the respondent in the
interim, as she did not have a working telephone number for Ms. R. On July 6, Ms. R.
informed Ms. Skyers that she had not, in fact, entered the shelter system, but instead was
residing with her sister in Queens. However, Ms. R. said that she did not know the actual
address. But the respondent indicated that she was at her sister's home only temporarily
and was still planning to enter a shelter. Ms. Skyers asked Ms. R. to contact her with her
placement information once she entered the shelter.
Ms. Skyers' next contact with Ms. R. was by telephone on July 10, 2012. On
that day, the respondent informed Ms. Skyers that she had still not entered the shelter
system but rather had returned to her cousin's home in the Bronx. This was still only
temporary, however, and she said she would enter the shelter system on the next day. On
July 12, 2012, Ms. Skyers visited Ms. R. and Shina, who were still at the cousin's home
in the Bronx. The cousin's apartment appeared sufficient and safe for Ms. R. and Shina,
but Ms. R. acknowledged that she could not stay there long-term because her cousin was
planning to move out. The respondent indicated that she was going to enter a shelter that
day, but she was waiting for her cousin's partner to drive her and the child to the shelter
with their belongings. Ms. Skyers suggested to Ms. R. that she take only some of her
things to the shelter and go there right away, and that she could come back for the rest
later. But Ms. R. declined to do so and chose instead to wait for the ride.
The next contact with the respondent was on July 26, 2012. After being
unable to locate Ms. R. and the child for some time, Ms. Skyers returned to Ms. R.'s
cousin's home in the Bronx. Ms. R. and Shina were still living there and had not entered
the shelter system. On the 26th, Ms. Skyers encouraged the respondent to apply for
public assistance so that she could have her own, steady source of income, and Ms.
Skyers offered transportation money for Ms. R. to do so. At this time, Ms. R. stated again
that she had already been denied public assistance, although at no time did she ever
produce any paperwork confirming that she had applied or been denied. And although
Ms. Skyers informed her that she could re-apply, Ms. R. never did so. As for housing,
[*4]Ms. R. informed Ms. Skyers that her newest plan was
to have her sister pay for a two-bedroom apartment for Ms. R. and Shina. Ms. Skyers
again cautioned the respondent that all of her plans lacked stability and relied too much
on others, and that Ms. R. needed her own source of income and her own apartment for
herself and Shina.
Nonetheless, on the next day, July 27, 2012, Ms. Skyers accompanied Ms. R.
and Shina to enter the shelter system in New York City. But on July 31, 2012, the
respondent informed Ms. Skyers that she had left the shelter where they had been placed
because she didn't feel comfortable in that placement and felt it would be bad for Shina.
Ms. R. said her plan now was to enter the shelter system in Long Island with the
assistance of Ms. C.R. Ms. Skyers attempted to call and visit Ms. R. and Shina several
times in the days that followed, but she had no further contact with respondent until
August 10, 2012. On that day, Ms. R. told Ms. Skyers that she was not in a shelter but
rather was staying with a friend in Long Island. Ms. R. refused to provide the address of
the friend in order for Ms. Skyers to be able to visit, but the respondent arranged to meet
with Ms. Skyers a few days later, back at the cousin's home in the Bronx.
On August 13, 2012, Ms. Skyers again visited the cousin's home in the
Bronx, and she reiterated to Ms. R. that her lack of housing stability was not good for
Shina. During that visit, Shina told Ms. Skyers that, on the day before — August
12, 2012 — she had witnessed her mother's partner scratch her mother and give
her a black eye, although the worker did not see marks on Ms. R. during the visit on the
13th. In Ms. Skyer's further conversations with the respondent that day, Ms. R. described
her past history of growing up in foster care, having been diagnosed as retarded at some
point, having a mental health history and having seen a counselor at times, and loving her
child Shina very much. At the end of the visit, Ms. Skyers suggested that perhaps Ms.
C.R. could care for Shina while the respondent got "back on her feet." Ms. R. appeared
to agree, albeit reluctantly, as she still cared for Shina and did not want Shina to be in
foster care on a long-term basis.
On August 21, 2012, a child safety conference was held, and Ms. C.R. and
the respondent were among those in attendance. And at the conference, Ms. R. talked
more about her history, including past domestic violence, and stated that she could not
adequately take care of Shina at that time. Ms. R. further stated that she did not want to
go back to the shelter system and wanted Ms. C.R. to take care of Shina until Ms. R.
could get herself together.
Ms. Skyers also testified to multiple additional contacts with the respondent
between August and December of 2012, when the petition was filed. As of December 26,
2012, Ms. R. had still not obtained housing or any income, and she had asked that her
weekly visits with Shina be reduced to every other week.
c. The Foster Care Agency Case Notes
Redacted case notes from the foster care agency, SCO Family of Services,
were entered into evidence as Petitioner's Exhibit 2. In pertinent part, the admissible
portions of those records, see People v. Smith, 122 AD3d 446 (1st Dept. 2014)
(discussing portions of foster care records admissible under business records exception to
the hearsay rule); Matter of Grayson J., 119 AD3d 575 (2nd Dept. 2014) (same), indicate
that from the time Shina was officially returned to Ms. C.R.'s care, the respondent only
sporadically attended her scheduled visits at the agency and, as testified to by Ms. Skyers,
actually asked to reduce the number of visits. The records also note that Ms. R.
claimed that she had a lot of phone contact with the child, even though she was not
visiting frequently. The records also document Ms. R.'s continued failure to obtain
housing or income, despite the agency's efforts to assist her. On multiple occasions, Ms.
R. stated that she planned to enter the shelter system, but she did not. The records also
indicate a number of instances where the respondent was emotionally or physically
abusive toward Shina. For example, the caseworker wrote that during one visit, Ms. R.
was "rude to [Shina and] sham[ed] her when she couldn't write her name. [Ms. R.]
reprimanded Shina until Shina started to cry. When Shina ran to [Ms. R.] for comfort,
Ms. R. told her to stop crying, and offered her very little emotional support." On another
occasion, Shina reported to the caseworker that when she and Ms. R. lived together, her
mother told her that was she was angry that she had to care for Shina. A different time,
Shina told the caseworker that her mother punished her for playing with a lighter by
making her strip and beating her, that this happened in the kitchen, and that others were
present including her aunt and a man she referred to as "Uncle Ricky."
d. Dr. Loomis
Dr. Stephen Loomis, a psychologist for the foster care agency, testified that
he treated Shina for approximately one and a half years. At a session on January 10,
2013, Ms. C.R. reported to him that Shina described an incident where her mother had
stripped her naked and beaten her in front of others as a form of punishment. Dr. Loomis
then questioned Shina about this in open-ended, broad terms, and Shina repeated those
specific allegations to Dr. Loomis. Notably, Shina described the incident again during the
subsequent counseling session. Shina also described to Dr. Loomis that this incident
made her feel frightened and embarrassed.
e. Ms. C.R.
Finally, Ms. C.R. testified for the petitioner. Ms. C.R. was the respondent's
foster mother for many years, and both the respondent and Shina resided together in Ms.
C.R.'s home for most of the first six years of Shina's life. Ms. C.R. testified that, on
multiple occasions, she observed Ms. R. both threaten to hit Shina with a belt and
actually hit her with a belt. She also heard Ms. R. tell Shina to her face that the child was
"ruining [her] life," and that the child, often already crying or having been beaten, would
continue crying from being spoken to in this way. At these times, Ms. C.R. testified, Ms.
R. did not comfort Shina at all. Additionally, Ms. C.R. described that Shina child
reported to her being undressed, put up against a wall, and beaten in front of others on
one occasion when she was living with Ms. R.
When the respondent aged out of care, Ms. C.R. gave her the option of
remaining in her home as a paying tenant, but Ms. R. told Ms. C.R. that she preferred to
go live with her boyfriend in the Bronx or with her cousin in Queens. During the two
months when Shina was not living with Ms. R. but not in Ms. C.R.'s home, the
respondent told Ms. C.R. that she and Shina lived in at least three different places. Ms.
C.R. further testified that when the respondent and Shina left her home in June, the child
was "okay," but that when Shina returned to Ms. C.R.'s care in August after living from
place to place with Ms. R., the child was dirty, malnourished, and had bug bites all over
her body. Ms. C.R. also testified that she made numerous efforts to help Ms. R. find
income and shelter, including (1) taking her to and enrolling her in a cosmetology school;
(2) finding her a job at a beauty salon; and (3) occasionally providing Ms. R. some
short-term cash assistance. However, Ms. R. failed to follow through with either the
school or the job offer. Ms. C.R. also testified that the respondent missed many visits
with the child, or arrived late or ended them early, and that between August and January
of 2013, Ms. R. did not visit Shina at all. Ms. C.R. further noted that when Ms. R. did not
attend the scheduled visits with Shina, the child would become very upset and "act
out."
g. Other Allegations
The petitioner also submitted some evidence about marijuana use by the
respondent, as well as domestic violence and sexual activity in front of the child.
However, as described below, this Court does not base its finding on these allegations,
and thus I will not further summarize that evidence here.
h. The Respondent's Case
The respondent did not call any witnesses, but she did put into evidence (1)
the final permanency report from her own foster care placement; (2) records from Nassau
County DSS relating to an unfounded case relating to allegations of the respondent
hitting Shina with a belt; and (3) a stipulation among parties that an investigation from
2012 was unfounded as to allegations of domestic violence and sexual activity in front of
Shina.
The Attorney for the Child did not call any witnesses or put any documents
into evidence, and all parties rested. III. DISCUSSION
AND FINDINGS
I found the testimony of the witnesses to be
credible. Ms. Skyers was straightforward in her demeanor, knowledgeable about the
events she described, and corroborated by other evidence in the case. Likewise, Dr.
Loomis was a credible witness. He was corroborated by the other evidence in the case, he
had no motive to fabricate about the situation, and he was frank [*5]and open about his limited role in this case and about the
nature and extent of his conversations with Shina. And finally, Ms. C.R.'s testimony was
credible and very persuasive. Indeed, she made clear that she did not wish to testify at all
in this case, much less in a manner that might harm or upset Ms. R. Ms. C.R. described,
and demonstrated in her demeanor, that she still loved and cared deeply for Ms. R., and
she felt that Ms. R. had come a long way as a parent and as a person. Not only did Ms.
C.R. lack any incentive to testify falsely or unfairly against the respondent, but her
testimony appeared at times quite protective of Ms. R. And finally, Ms. C.R. was also
corroborated by the other evidence in the case.
As noted, Ms. R. did not call any witnesses and did not testify herself, and I
draw a negative inference against her for her failure to testify at the trial. See, e.g., Matter
of Nassau County Dept. of Social Servs. v. Denise J., 87 NY2d 73 (1995).
I am quite mindful of all the challenges that Ms. R. has faced, both as a
foster child herself and as a parent. Shina was born when the respondent was only fifteen
years old, and Ms. R. was placed, with Shina, with Ms. C.R. when Shina was four
months old. Ms. R. (and her sister) stayed there until she aged out of care at age 21.
Sadly, despite ACS and the Family Court's efforts, Ms. R. aged out of foster care into
homelessness, although she refused the option of remaining in Ms. C.R.'s home and
paying rent (notably, Ms. R.'s sister did take advantage of this offer). Through this trial
and this case, I heard persuasive arguments as to whether the efforts made by ACS and
SCO Family of Services to assist Ms. R. in establishing a stable residence and income
were sufficient, as well as about the Ms. R.'s own responsibility for having rejected the
advice and assistance of the agencies and Ms. C.R. It is plain that ACS and SCO could
have done more — and should have done more — for this young mother,
who faced poverty, homelessness, and being a survivor of her own traumatic childhood
that resulted in her placement into foster care. Merely trailing her around and repeatedly
asking her to enter a shelter hardly constitutes a sufficient support system.
That being said, despite any failings of the agencies involved, Ms. R. was no
longer a minor and was now the parent of a young child. She was ultimately responsible
for the care of her own child and taking whatever steps were necessary to be able to
provide a minimum degree of care. Under the facts of this case, I decline to find that any
failings of the agency amount to a complete defense to Ms. R.'s failure to provide a
home, an income, and proper care for her child.
In summation, the respondent's attorney made much of the respondent's right
to choose to live with relatives rather than enter the shelter system. Also, Ms. Skyers did
not find that any of the homes in which Ms. R. and Shina stayed were unsafe or
inadequate. However, the facts here are not that Ms. R. chose to reside with one or more
relatives as a source of support, but rather that she simply went from place to place with
Shina — on a seemingly weekly or sometimes daily basis — knowing that
none of these places or situations could possibly accommodate and support her and her
child in any meaningful way. Plainly, Ms. R. had no plan of any kind for stable housing,
bedding, food, or clothing.
Similarly, while the respondent did some amount of money from braiding
hair and received occasional financial support from relatives and from Ms. C.R., it is
uncontroverted that this patchwork was not nearly sufficient to provide the basic
necessities for Shina. Indeed, when [*6]Shina arrived
back at Ms. C.R.'s home after a period of being with Ms. R., the child was malnourished
and dirty. This was plain and tangible evidence of Ms. R.'s neglect. See generally, Matter
of Justin A., 94 AD3d 575 (1st Dept. 2012) (child's significant weight gain when
hospitalized indicated that he had not been receiving proper nourishment at home);
Matter of Commissioner of Social Services o/b/o Female W., 182 AD2d 589 (1st Dept.
1992) (child gained weight and functioned better in hospital than in care of the
respondent). All of this was the gravamen of first petition, and ACS proved by a
preponderance of the evidence that respondent neglected Shina by failing to obtain stable
and sufficient housing, despite the efforts and the assistance of ACS and the foster care
agency. See, e.g., Matter of Alexander L., 99 AD3d 599 (1st Dept. 2012) (neglect found
where respondent was repeatedly advised that her unstable living situation was the cause
of child's deteriorating condition, but respondent nevertheless refused suitable permanent
housing options); Matter of Tia B., 257 AD2d 366 (1st Dept. 1999) (respondent failed to
provide adequate shelter and refused assistance in obtaining alternative housing).
Further, ACS proved by a preponderance of the evidence many (but not all)
of the additional allegations in the amended petition, establishing an overarching pattern
of inadequate supervision, emotional abuse, and at least one instance of excessive
corporal punishment — namely, the incident where Ms. R. forced Shina to strip
naked and then beat her in front of others.[FN2]
Shina's own statements to others about this incident — made to Ms. C.R. and Dr.
Loomis, and to the case worker (as reflected in the case records) — are admissible
under FCA §1046(a)(vi)., and I find that they are sufficiently corroborated by other
evidence in this case, as required by that subsection. The corroboration requirement is
not a heavy one in Article 10 cases, as the statute merely requires "[a]ny other evidence
tending to support the reliability of the previous statements ." FCA §1046(a)(vi).
See, e.g., Matter of Caitlyn U., 46 AD3d 1144, 1146 (3rd Dept. 2007) ("a relatively low
degree of corroborative evidence is sufficient") (citing cases); Matter of Astrid C., 43
AD3d 819,821 (2nd Dept. 2007) ("The rule requiring corroboration is flexible") (citing
cases). "The policy served by requiring corroboration of a victim's out-of-court
statements in a child protective proceeding is to assure that a fact-finding determination
is not being made on the basis of hearsay evidence [17] alone, and the quantum of
corroboration is substantially less exacting than that required in criminal cases." Matter
of Linda K., 132 AD2d 149, 156 (2nd Dept. 1987) (citations and internal quotations
omitted).
Here, Shina's statements are corroborated by her own statements to other
people, see Matter of David R., 123 AD3d 483, 484 (1st Dept. 2014) (while repeated
out-of-court statements by the child are not sufficient corroboration on their own to
sustain a finding of neglect, they can properly serve to enhance the credibility of the
allegations) (citing cases); Matter of Charlie S., [*7]82
AD3d 1248 (2nd Dept. 2011) (consistent statements made to different people, combined
with some additional evidence — in that case, a negative inference drawn by the
court from the respondent's failure to testify — was sufficient to sustain a finding);
by Dr. Loomis' description of the child appearing and feeling shamed by the incident; by
the caseworker's observation of the child crying over her treatment by her mother; and by
additional incidents of corporal punishment that were reported by the child and witnessed
by the foster mother. See David R., 123 AD3d at 484-85 (allegations of excessive
corporal punishment properly corroborated by evidence of similar incidents with other
children); Matter of Nurridin B., 116 AD3d 770, 771 (2nd Dept. 2014) (corroboration
where the respondent admitted to prior incidents of using corporal punishment on child)
(citing cases); In re Joshua B., 28 AD3d 759 (2nd Dept. 2006) (corroboration by
evidence of similar incidents).
In addition, I find that the mother's actions of punishing Shina by forcing her to strip
naked and beating her in front of others amounted to an excessive, degrading, and
disproportionate form of discipline, particularly given Shina's age at the time.[FN3]
See generally, In re Rodney C., 91 Misc 2d 677 (Fam. Ct., Onondaga Co., J. McLaughlin
(1977)). Under the Family Court Act and the Penal Law, a parent is not prohibited from
using physical force to discipline a child. FCA §1012(f)(i)(b); PL §35.10(1).
Rather, the standard is whether the punishment is "excessive" or "reasonable." Id. It can
be difficult for a court to assess the reasonableness of punishment in a given situation,
but the assessment must be based upon all of the facts and circumstances present,
including, inter alia, the nature of the punishment, the purported reason for the
punishment, the age, maturity and size of the child, the ability of the child to understand
or appreciate the punishment, whether a less severe form of punishment would have
sufficed, and the effect of the punishment on the child, whether physical or emotional.
Rodney C., 91 Misc 2d at 679-80 (citing Restatement on Torts 2d, §150, and cases);
In re Peter G., 6 AD3d 201, 206 (1st Dept. 2004) (concurrence, citing Rodney C.); In re
Jonathan C., 195 AD2d 554 (2nd Dept. 1993) (citing Rodney C.). Moreover, "force
applied . . . primarily for any purpose other than proper training or education of the child
or for the preservation of discipline is not privileged." Rodney C., 91 Misc 2d at 680
(quoting Restatement on Torts 2d, §151). "Thus, force administered for the
gratification of passion or rage is excessive punishment." Id. (internal quotation and
citation omitted). And finally, the absence of a physical injury resulting from a
punishment does not preclude a finding of neglect. In re Danielle M., 151 AD2d 240,
242 (1st Dept. 1989) (citing Matter of Tammie Z., 105 AD2d 463, 464 (3rd Dept.
1984)).
In the instant matter, Ms. R. punished Shina by stripping her naked and beating her
in front of other adults. At the time of this incident, Shina was only five years old. In
combination [*8]with Ms. R.'s other demeaning
statements to, and about, the child during this period of time, the evidence proves that
this was disproportionate, degrading, and done out of a desire to satisfy the respondent's
own rage, rather than a reasonable, calculated punishment that communicated discipline
to the child in a way that a five year old could understand. It is unclear whether this
incident caused any physical injury to Shina, but it scared and shamed this little girl in a
manner that far exceeded reasonableness, when a much less severe punishment would
have sufficed. This incident alone constitutes neglect under the Family Court Act.
The court also finds credible the testimony that established a pattern of
emotional neglect and rejection of the child on behalf of the respondent: e.g., Ms.
R.'s statements that she sometimes wished she did not have Shina and that Shina had
ruined her life; her negative comments about Shina's abilities; and her failure to visit the
child after Shina was again living with Ms. C.R. While such behavior alone may not be
sufficient to support a finding of neglect, it was clear from the evidence that, in
combination with all of the other evidence in the case, Shina was harmed by this pattern
of treatment from her mother. See Matter of Shane T., 115 Misc 2d 161 (Fam. Ct.,
Richmond Co., J. Leddy (1982)) (respondent repeatedly calling child a "fag" and other
homophobic epithets constituted neglect); In re Theresa "CC", 178 AD2d 687, 689 (3rd
Dept. 1991) (pattern of emotional abuse by exposing children to violent and
inappropriate behavior where evidence that this made the children fearful and
distressed).IV. CONCLUSION
Based on all of the evidence submitted and testimony adduced, I find that Shina is a
neglected child as defined in FCA §1012(f). The respondent (1) failed to supply the
child with adequate food, clothing or shelter, although financially able to do so, and
having been offered financial and other reasonable means to do so; (2) failed to provide
Shina with proper supervision and guardianship; (3) used excessive corporal punishment
on the child; and (4) emotionally neglected the child.
However, as to the allegations related to marijuana use, engaging in sexual
activity in front of the child, or engaging in domestic violence in front of the child, I find
that ACS failed to meet its burden required to support a neglect finding.
Dated:____________
Bronx, NY
____________________________
Hon. Robert Hettleman
Family Court Judge, Bronx County
Footnotes
Footnote 1:At all times during the
pendency of this action, Shina was placed in foster care in the home of Ms. C.R., who
was also the respondent's foster mother until Ms. R. aged out of foster care in
June of 2012. The respondent was placed with Ms. C.R. soon after Shina was born, and
both mother and child remained in Ms. C.R.'s foster home until Ms. R. left care. Ms. R.
initially placed Shina with Ms. C.R. on a voluntary basis in August of 2012. But in
December of that year, the original petition for voluntary placement was dismissed by
New York County Family Court with a direction that the instant neglect action be filed.
Footnote 2:Although the amended
petition alleged only that Ms. R. had the child strip naked and hold her arms out in front
of adults — that is, it did not mention a beating — the facts at trial
established that this incident did include a physical beating, and I permitted the oral
amendment of the allegations to conform to the proof adduced at trial. FCA
§1051(b).
Footnote 3:This court notes that
there was considerable argument at trial over the fact that an investigation of this incident
came back unfounded by Nassau County Child Protective Services. This Court is not
bound by that administrative investigation and decision; I, as the trier of fact, am required
to make this determination.