Family Court, Erie County, October 27, 2017

Gary M. Phillips for respondent mother.

Legal Aid Bureau of Buffalo, Inc. (Russel Fox of counsel), Attorney for the Child.

Charles J. Gallagher for Erie County Department of Social Services.

Respondent, Nicole L., moves to dismiss this petition alleging that she neglected her child. The petition was filed on March 6, 2017, and alleges that respondents exposed the child to domestic violence. In particular, it alleges an incident of serious abuse by respondent, Jeremy H., against Ms. L., which took place between November 26, 2016, and November 28, 2016. The petition does not allege that the child witnessed this incident. As a result, Mr. H. was arrested and charged with felony assault, along with other charges. An order of protection was issued in favor of Ms. L. The petition goes on to allege{**59 Misc 3d at 364} that, on prior occasions, the child was present for incidents of domestic violence. It further alleges that Ms. L. later allowed Mr. H. back into her home, resulting in the child again witnessing domestic violence. There is also an allegation that, on March 1, 2017, Ms. L. and the child accompanied Mr. H. to his residence, a location that exposed the child to "bad people" and involved her witnessing knives and blood on a bed. Finally, there is an allegation that both respondents have become intoxicated while caring for the child.

The case was brought before this court on March 6, 2017, at which time the child was removed from Ms. L.'s home and placed with her maternal grandmother. An order of protection was entered against Mr. H. On May 5, 2017, by consent of all parties, Ms. L. was permitted to move into the home where the child had been placed. On August 8, 2017, the child was returned to the custody of Ms. L., again by consent. In the meantime, Mr. H. was convicted and sentenced to a prison term of four years.

The current motion is brought upon two grounds. First, it argues that, pursuant to section 1051 (c) of the Family Court Act, the aid of the court is no longer required. Second, it asserts that the allegations of the petition are insufficient to sustain a finding of neglect.

[1] Addressing this second argument, the petition is legally sufficient. Ms. L. argues correctly that allegations that a respondent was the victim of domestic violence, without more, are insufficient to support a finding of neglect. (See Nicholson v Scoppetta, 3 NY3d 357 [2004].) The allegations here, however, allege a long history of domestic violence without any action by Ms. L. to protect the child until the November 2016 incident. In addition, it alleges that Ms. L. allowed Mr. H. back into her home in violation of an order of protection and brought the child with her to Mr. H.'s residence. These incidents are alleged to have caused great distress and a physical injury to the child. If true, they would involve actions by Ms. L. beyond simply being the victim of domestic violence. The petition is, therefore, sufficient on its face.

Section 1051 (c) states that

"[i]f facts sufficient to sustain the petition under this article are not established, or if, in a case of alleged neglect, the court concludes that its aid is not required on the record before it, the court shall dismiss the petition and shall state on the record{**59 Misc 3d at 365} the grounds for the dismissal."

Ms. L. has submitted her affidavit stating that she has fully cooperated with the requests of the Department of Social Services (D.S.S.) that she participate in programs to address the issues that led to the petition. She participated in a substance abuse evaluation and was determined to not require treatment. She obtained a mental health evaluation and no treatment was suggested. That evaluation did suggest domestic violence training and a parenting class, both of which Ms. L. attended and completed. Documentary evidence has been submitted confirming all of these program results. In addition, Ms. L. states that she fully cooperated in the prosecution of Mr. H., resulting in his incarceration. Finally, she cites the fact that the child has been returned to her care with consent of D.S.S. and without further incident. The Attorney for the Child submitted an affirmation in support of the motion to dismiss.

D.S.S. submitted an attorney affirmation in opposition, arguing that section 1051 (c) only permits the court to dismiss a petition after fact-finding. This argument is based solely upon the statute's use of the words "on the record before it" in the phrase authorizing dismissal. Of course, a court record does not necessarily mean a trial record. As here, a record can consist of evidence submitted in support of a motion. It could also include pleadings, discovery responses and matters of which the court takes judicial notice.

[2] There is nothing in the plain language of section 1051 (c) that requires a fact-finding hearing. Case law on the issue is sparse. However, this court finds persuasive the reasoning of Kings County Family Court in Matter of Kailynn I. (Rosalind L.) (52 Misc 3d 740 [2016]), which examined the relevant case law and found that the court does have the power to dismiss prior to a fact-finding hearing if a sufficient record is made establishing that the court's aid is no longer required. As stated by that court, the interpretation urged by D.S.S. "would result in this Court having to conduct an unnecessary fact-finding hearing to reach the same conclusion, thus needlessly spending the parties' and this court's limited time and extending ACS's intrusion when it is not serving any useful purpose to this family." (Id. at 749.)

Further support for the court's power to dismiss prior to a fact-finding hearing comes from Matter of Donnisha S. (Patricia W.) (56 Misc 3d 991 [Fam Ct, Bronx County 2017]). That court also reasoned that "[t]he statute is void of any language {**59 Misc 3d at 366}which would suggest that an application, pursuant to Family Court Act § 1051 (c), can only be granted prior to a fact-finding hearing." (Id. at 998.) The court went on to analyze the continuing need for its services, based upon the motion papers and pleadings before it, and concluded that dismissal was not warranted on the facts presented.

It is necessary, therefore, to turn to the facts presented on the record presently before the court. The factors to be considered by the court include the nature of the original allegations, whether the underlying problems have been resolved, and whether the respondent has complied with and completed all recommended services. (See e.g. Matter of Robert W. [Francine H.], 30 [*2]Misc 3d 1231[A], 2011 NY Slip Op 50304[U] [Fam Ct, Kings County 2011].) The facts in this case are not in dispute, and are established by the petition and the uncontradicted affidavit of Ms. L.

The nature of the allegations is discussed above. It is noteworthy that these allegations all involve Ms. L.'s relationship with Mr. H. Ms. L.'s assertions that the relationship has ended are uncontradicted and, in fact, any threat presented by Mr. H. has been ended, for now, by his long-term incarceration. It is noteworthy that Ms. L. cooperated in his prosecution. There are no allegations that Ms. L. has demonstrated a pattern of engaging in abusive relationships. There is no allegation of any concerning behavior since Mr. H. was removed from the child's life. The child has been returned to Ms. L.'s care, by consent of all parties, and there is no indication that there have been any problems. Finally, it is undisputed that Ms. L. has complied with everything asked of her by D.S.S.

The court is aware that there is case law to the effect that a neglect adjudication, by itself, may be important because it can have an impact on future cases. (See e.g. Matter of Imena V. [Dia V.], 91 AD3d 1067 [3d Dept 2012].) The matter at bar, however, gives no indication that this should be a concern. It is certainly not the case that such a consideration, without more, should always bar section 1051 (c) relief, or the section would be legally superfluous. See Matter of Anoushka G. (Cyntra M.) (132 AD3d 867 [2d Dept 2015]), in which the Court, following a suspended judgment, granted a motion to dismiss under section 1051 (c) and vacated the prior finding of neglect.

[3] Based on the record before this court, therefore, I must conclude that the aid of the court is no longer required.{**59 Misc 3d at 367}

It is, therefore, ordered that the motion to dismiss is granted; and it is further ordered that the petition is dismissed as against respondent, Nicole L.