Family Court, Kings County, April 23, 2018

Brooklyn Defender Services, Family Defense Practice (Laura Matthews-Jolly of counsel), for respondent father.

[*2]Administration for Children's Services, Family Court Legal Services (Diane Shea of counsel), for petitioner.

Larry B. Margolis, Brooklyn, Attorney for the Child.

Joel Kahn, Brooklyn, for respondent mother.

Before the court is a motion to dismiss for failure to state a cause of action filed by the respondent father, Mr. W, regarding neglect allegations against him by the Administration for Children's Services (ACS or petitioner) pursuant to Family Court Act article 10. Petitioner filed an affirmation in opposition and the Attorney for the Child filed no papers. For the reasons below, respondent's motion is granted and the neglect petition is dismissed.

On June 26, 2017, petitioner filed a petition against the respondents alleging neglect of their infant daughter. The allegation that pertains to Mr. W^[FN*] is that he failed to provide proper supervision or guardianship of the child pursuant to Family Court Act § 1012 in that{**60 Misc 3d at 364}

"[a]ccording to the respondent father, he indicated that he does not currently have stable housing, but is currently 'staying' with his cousin. The respondent father stated he would not provide ACS with the address of his cousin with whom he was residing, nor provide his cousins [sic] name, nor even tell ACS in what borough his cousin resides. The undersigned asked the [*3]respondent father what provisions, if any, he had for the child, to which the respondent said he 'had a carseat and some stuff' for the newborn child but would not say specifically what provisions, if any, he had for the child.

"According to the case manager at the respondent father's prior shelter, the respondent father was discharged from his shelter on or about June 18, 2017 for non-compliance with shelter eligibility rules."

Respondent father argues that this court must dismiss this petition against him pursuant to CPLR 3211 (a) (7) because the pleading fails to state a cause of action for neglect. The Family Court Act requires that a child protective petition set forth "facts sufficient to establish that a child is an abused or neglected child under this article." (Family Ct Act § 1031 [a].) The Second Department has held that, on a motion to dismiss in an article 10 case, like in other motions pursuant to CPLR 3211, the court "must accept the allegations set forth in the petition as true and afford the petitioner the benefit of every favorable inference that can be drawn therefrom." (Matter of Keira O., 44 AD3d 668, 670 [2d Dept 2007]; see also Matter of Stefanel Tyesha C., 157 AD2d 322, 325 [1st Dept 1990] ["allegations are to be most liberally construed in favor of the pleader"]; Matter of Xavier G., 19 Misc 3d 1113[A], 2008 NY Slip Op 50670[U] [Fam Ct 2008].) The inquiry is limited to whether the petition, when considered as a whole, "states in some recognizable form any cause of action known to our law." (Stefanel Tyesha C., 157 AD2d at 325.)

In Nicholson v Scoppetta (3 NY3d 357, 368-369 [2004]), the Court of Appeals enunciated two critical elements that the petitioner must prove to establish neglect under Family Court Act § 1012 (f) (i) (B):

"[1] a child's physical, mental or emotional condition has been impaired or is in imminent danger of{**60 Misc 3d at 365} becoming impaired and [2], that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship."

Nicholson makes clear that the danger "must be near or impending, not merely possible," and that a parent's actions constitute neglect only when they fall below a "minimum degree of care—not maximum, not best, not ideal." (Id. at 370 [internal quotation marks omitted].)

Case law permits the court to consider additional factual allegations contained in affidavits in response to motions to dismiss. (See Rovello v Orofino Realty Co., 40 NY2d 633 [1976].) However, the petitioner's affirmation in opposition here merely repeats the allegations contained in the petition, adding only that "the respondent was given multiple opportunities to provide the caseworker with the information but refused." (Affirmation in opp dated Mar. 9, 2018 at 5, para 13.) The fact that the respondent father was asked these questions more than once does not make his refusal to disclose information sufficient to establish neglect. The only other new allegations contained in petitioner's affirmation are ones that support the father's claim of insufficiency namely that "he stated to the caseworker that he is working and can care [*4]for the child." (Id.)

The allegations against Mr. W state the following affirmative facts: (1) that he does not have a "stable" place to stay; (2) that he does have a place to stay currently with his cousin; (3) that he has some provisions for his newborn daughter specifically a "car seat and stuff"; and (4) that he was discharged from a "prior" shelter on June 18th, over one week prior to the filing of the petition, due to "non-compliance with shelter eligibility rules."

The petition goes on to allege the respondent's refusal to provide other information, namely (1) the name and address of the cousin, and (2) a list of the precise "stuff" Mr. W has obtained for the baby. Notably, the petition does NOT allege any basis to believe that the cousin's home would pose any danger to Divine if she were to live there temporarily while the father sought a more "stable" living arrangement nor was there any statement by Mr. W that he was unable or unwilling to immediately care for his baby either physically or financially. To the contrary, petitioner's affirmation in response states that the father informed the caseworker that he was employed and "can care for the child."

{**60 Misc 3d at 366}After construing this pleading liberally and according petitioner the benefit of every possible favorable inference as required by appellate law, the allegations here are insufficient to state a cause of action for neglect. Even if the court were to infer that the respondent is not able to bring his daughter to live with his cousin long-term or even for more than a night or two, the respondent may be able to find permanent housing, could have other family or friends they can stay with or, worst case scenario, can seek emergency shelter through the Prevention Assistance and Temporary Housing system. The fact that he was found ineligible as a single man has no bearing on whether he would be found eligible as a family unit with his daughter. It is clear that residing in the shelter system in and of itself is not a basis for a neglect petition. Additionally, even if this court was to infer that the respondent's "stuff" did not include such necessities as diapers, formula, or a crib/bassinet, the respondent has indicated a source of support through which he can purchase those items or, if necessary, he can seek financial assistance or donations to do so. Poverty is also not a basis for neglect which is why article 10 states that the failure to supply a child "with adequate food, clothing, shelter or education . . . or medical, dental, optometrical or surgical care" must be coupled with proof that the respondent is "financially able to do so or offered financial or other reasonable means to do so" in order for such failure to rise to the level of neglect. (Family Ct Act § 1012 [f] [i] [A].)

Here, the "worst case scenario" is a quite common one—a new parent who is not fully prepared for the birth of a child and who needs to run out to buy supplies right before or after the baby is discharged from the hospital. It would go beyond every fair inference for the court to presume that none of the various methods available to Mr. W would result in his obtaining the necessary items. The fact that the one item Mr. W identified as having is a car seat is significant in terms of his planning in that it is the one item absolutely necessary to obtain prior to a newborn's discharge in order to transport her home from the hospital.

The Constitution creates a fundamental right to raise one's biological child which cannot be infringed upon without some basis to establish that the child is at imminent risk if she remains in the care of her parents. "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This{**60 Misc 3d at 367} primary role of the parents in the upbringing of their children is now established beyond debate as an enduring [*5]American tradition." (Parham v J.R., 442 US 584, 621 n 1 [1979], quoting Wisconsin v Yoder, 406 US 205, 232 [1972].) "[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (Troxel v Granville, 530 US 57, 66 [2000].) It is " 'plain beyond the need for multiple citation' that a natural parent's 'desire for and right to "the companionship, care, custody, and management of his or her children" ' is an interest far more precious than any property right." (Santosky v Kramer, 455 US 745, 758-759 [1982], quoting Lassiter v Department of Social Servs. of Durham Cty., 452 US 18, 27 [1981].) And "families have a 'well-elaborated constitutional right to live together without governmental interference.' " (Demaree v Pederson, 880 F3d 1066, 1069 [9th Cir 2018].)

Neither our culture nor our laws require adults to prove their ability to parent before they can take their biological child home from the hospital. Our society does not convey a parenting license that one must apply for and/or pass a test to obtain. Some might argue that such a license would be desirable given the challenges of parenting especially in today's modern world and the fact that there is no other job in which our society places another person's physical and emotional well-being in the hands of someone without any mandatory prior education or training allowing for the possibility of learning "on the job." However, if such a requirement were to exist it would have to be universally and uniformly applied to babies born at private hospitals in the high income, predominantly white sectors of NYC along with the public hospitals in the poorest areas such as East New York and Brownsville. When a baby is born in a private hospital on the Upper East Side, parents are not required to prove that they have an "acceptable" place to live or a prescribed list of baby supplies before they can bring their child home. A finding of neglect based on a parent of a newborn's mere refusal to provide information requested by a child protective investigator without more, would be an unconstitutional abrogation of the "fundamental liberty interest of natural parents" to parent. (Santosky v Kramer, 455 US 745, 753 [1982].)

The court has considered every possible inference in favor of the petitioner and nevertheless has determined that the matter{**60 Misc 3d at 368} must be dismissed for failure to state a cause of action pursuant to CPLR 3211 (a) (7). While dismissal may be a "harsh remedy" which must be imposed with "caution" in an article 10 case (Matter of Ismael M., 2 AD3d 312 [1st Dept 2003]), the dismissal here is without prejudice in that, if the petitioner has other allegations which form the basis of a legally sufficient neglect petition against the father, nothing prevents it from doing so. However, ACS has an obligation as an agency and under the law to attempt to make reasonable efforts to prevent any possible future removal of Divine from her father which would certainly include working with and supporting Mr. W in parenting his daughter. (See Family Ct Act §§ 1022, 1028; Nicholson v Scoppetta, 3 NY3d 357, 376 [2004].)

The adjourn date of April 25th in Part 15 remains as the case against the respondent mother, in which Mr. W's role is now as a non-respondent father, continues.