Family Court, New York County, May 23, 2018

Neighborhood Defender Service of Harlem (Jeffrey Oakley of counsel) for A.G., respondent.

Administration for Children's Services, Family Court Legal Services (James Quinn, Jr. of counsel), for petitioner.

Center for Family Representation (Mina Wallner of counsel) for J.O., respondent.

Lawyers for Children, Inc. (Linda Diaz of counsel), Attorney for the Child.

Procedural History

On or about August 5, 2016, New York City Administration for Children's Services (ACS) filed a Family Court Act article 10 petition alleging abuse and neglect against the respondent mother (RM), A.G., and the respondent/person legally responsible (R/PLR), J.O. The petition alleged the RM and the R/PLR inflicted physical injury upon the three-year-old subject child (SC), C.R., other than by accidental means thus causing the SC's death.

On February 14, 2018, prior to a fact-finding hearing, the RM, through her attorney, filed this motion to dismiss the neglect petition pursuant to Family Court Act § 1052 (a) because the aid of the court is no longer needed or alternatively pursuant to Civil Practice Law and Rules § 3211 (a) (2) for lack of subject matter jurisdiction because of C.R.'s death. Mr. Quinn, on behalf of the Administration for Children's Services, filed an opposition reply on or about March 19, 2018. Mr. Oakley then filed a reply to ACS's opposition response on or about March 26, 2018. The Attorney for the Child did not take a position on RM's motion to dismiss. The R/PLR joined in the RM's motion to dismiss. The court granted Mr. Oakley's motion to dismiss the petition over ACS's objection and rendered its oral decision on or about May 23, 2018.

Facts

On August 3, 2016, RM called 911 to her New York City Housing Authority apartment at the Jefferson Houses. The responding police and medical units found her three-year-old{**63 Misc 3d at 448} son, C.R., battered, bruised and unconscious. C.R. was transported to Metropolitan Hospital whose records report that C.R. presented without a pulse, unresponsive, and unconscious. After further examination, C.R.'s body showed signs of swelling, bruising, scratches and internal bleeding, including in the brain. C.R. was later transferred to Weill Cornell Hospital where he died on or about August 5, 2016. The medical examiner declared C.R.'s death a homicide, determining that he had died from multiple blows to the head and neck.

R/PLR was allegedly visiting RM when C.R. suffered his fatal injuries. ACS filed a petition under Family Court Act article 10 against the RM that alleged that C.R. sustained non-accidental physical injuries and that physical abuse resulted in C.R.'s death. Based on the caregiving relationship between R/PLR and C.R., ACS also similarly charged R/PLR as a personal legally responsible for C.R. The petition alleged that the respondents gave inconsistent accounts as to the circumstances leading to C.R.'s injuries. No one has been prosecuted for C.R.'s death.

RM has filed an affidavit, motion and reply memorandum in support of her motion that the petition should be dismissed, without prejudice, as moot and not justiciable at this time because its adjudication could not have any immediate consequence on the parties. RM also moves to dismiss on the grounds that this court lacks subject matter jurisdiction to adjudicate a case of neglect and abuse where there is a deceased child with no living siblings and no other subject children under respondent's care.

In further support of her motion, RM in her affidavit claims that she has no other children, that she does not care for or act in a parental role with other children and has no plans to do so, and that she is [*2]not pregnant and has no intention to become pregnant.

Discussion

In the case of Matter of Alijah C. (1 NY3d 375 [2004]), respondent mother left her youngest son in the bathtub while looking for her other children. Upon returning, she found that he had drowned. Thereafter, petitioner Department of Social Services (DSS) filed a petition against respondent pursuant to Family Court Act article 10, alleging that she committed acts of "abuse" and "severe abuse" against him and that she derivatively neglected her other children. The respondent consented to a finding of neglect as to each of the surviving{**63 Misc 3d at 449} children but moved to dismiss the abuse petition filed on behalf of her son. The law guardian and DSS opposed the motion.

The Family Court granted the respondent mother's motion to dismiss the remainder abuse claim, holding that "where an abuse petition is filed on behalf of a deceased child, the purpose of filing the petition can no longer be served and therefore such a petition must be dismissed as moot." (Id. at 377.) Thereafter, a dispositional order was entered adjudicating the surviving children neglected and releasing the children to the custody of their maternal grandmother. The law guardian appealed the Family Court's order dismissing the abuse petition as to the deceased child.

The Appellate Division affirmed the dismissal of the abuse petition (Matter of Alijah C., 302 AD2d 838 [3d Dept 2003]). The Court relied on Matter of Stephanie WW. (213 AD2d 818 [3d Dept 1995]), which held that a neglect petition could not be brought on behalf of a deceased child because the subject child was no longer in need of the protections of Family Court Act article 10 and therefore had to be dismissed. Because the Third Department concluded that there was no distinction between neglect and abuse petitions, it held that a deceased child may not likewise be the subject of an abuse petition.

The Court of Appeals in Alijah C. reversed the dismissal of the abuse petition. It held that an abuse petition could be adjudicated despite the death of the child as a determination would have a bearing as to the disposition of surviving children, i.e., that the legislature had intended "to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramount in termination of parental rights proceedings as to surviving children," and further noted that the Family Court Act had defined abuse and neglect differently. (See 1 NY3d at 378-379, 378 n 1 [emphasis added].)

The Alijah C. Court stated that it only considered whether an abuse petition survived the child's death and would not address whether a neglect petition could not be continued under the same circumstances. (See 1 NY3d at 378 n 1.) The clear implication was that the Alijah C. Court found that, unlike neglect petitions, a deceased child could be the subject of an abuse petition if there were surviving children.

Accordingly, there are three conclusions that can be drawn from Alijah C. that steer the decision by this court. First, the Third Department of the Appellate Division in Matter of{**63 Misc 3d at 450} Stephanie WW.^[FN1] held that a deceased child cannot be the subject of a neglect petition. As this decision has not been overturned or even criticized by the Court of Appeals, this court is not going to rule otherwise.[*3]

Second, a deceased child can be the subject of an abuse petition, but only if there are surviving children or other children under the care of that person or children over whom such person is "legally responsible" (see Family Ct Act § 1012 [g] [defining "Person legally responsible" to include "the child's custodian, guardian, (or) any other person responsible for the child's care at the relevant time"]; see Matter of Riley II. [Sierra II.], 68 AD3d 1312 [3d Dept 2009] [after respondent voluntarily surrendered her parental rights during the pendency of the appeal, the claim that the child had been severely abused was dismissed as moot]; see also Matter of Yamillette G., 23 Misc 3d 841 [Fam Ct, Kings County 2009] [surviving half sister]^[FN2]). The Riley Court specifically noted, in dismissing the severe abuse claim, that unlike the facts in Alijah C., the respondent mother in Riley had no other children.^[FN3]

Petitioner cited Matter of Mylasia P. (Brenda P.) (104 AD3d 856 [2d Dept 2013]) in support of its position that this court retains jurisdiction to adjudicate. Mylasia P. was a neglect{**63 Misc 3d at 451} proceeding in which the respondent mother was accused of having neglected one daughter, Mylasia, and derivatively neglected a sibling. Although Mylasia turned 18 during the underlying proceeding, the Second Department held that the Family Court retained jurisdiction because it was commenced prior to her eighteenth birthday. This court not only finds that the facts in the instant proceedings are more analogous to those described in Matter of Stephanie WW. (deceased child moots neglect proceeding) but notes that in Mylasia P., unlike the instant case, the respondent mother had another child who was still owed the protections of article 10.

Third, the fact that neither the Appellate Division in Stephanie WW. nor the Court of Appeals in Alijah C. proposed potential holdings, depending on what the respondent mother did in the future, e.g., if the mothers became pregnant or accepted jobs caring for children, leaves this court to likewise decline to make a determination based on a possible future event. (See Riley, 68 AD3d at 1313 ["that respondent might successfully challenge her judicial surrender in the future or that she might subsequently have another child and that such child might require the protection of Family Ct Act article 10 too speculative to constitute an exception to the mootness doctrine"].)^[FN4] To the extent that petitioner argues that Social Services Law § 384-b (8) (b) (ii) and Family Court Act § 1012 (e) (i) and (iii) establish a five-year [*4]forward-looking window that allows this court to render an abuse decision, the additional cases cited are just not sufficiently on point to outweigh the contingent nature of potential circumstances. While respondent's affidavit disclaiming intent to have additional children or to ever have legal responsibility over children has not been vetted and is of little moment, her acknowledgement that a dismissal of the petition would be without prejudice and that an amended petition could be brought if her circumstances changed is not without basis. (Cf. Matter of A.L., 52 Misc 3d 1210[A], 2016 NY Slip Op 51109[U] [Fam Ct, Queens County{**63 Misc 3d at 452} 2016] [where parents were arrested for their child's death in 2007 and sibling A.L. was born in 2008, abuse and severe abuse petition initiated in 2012 was valid].)

The aforementioned courts' reluctance to apply the exception to the mootness doctrine in abuse and neglect cases is highlighted in Matter of Maddock E. (Luis E.) (138 AD3d 559 [1st Dept 2016]). This case involved a respondent father's attempts to dismiss several amended abuse and/or neglect petitions. After the first amended petition had been rendered moot by a superseding second amended petition, the Family Court declined to dismiss the second amended petition outright but had instead issued an adjournment in contemplation of dismissal (ACD). As the ACD period had expired, the father's appeal was rendered moot. In rejecting a mootness exception, the Appellate Division stated that the issue raised in the petition was not one that "typically evad[ed] review" as per the criteria set forth in Hearst Corp. v Clyne. Yet, despite the mootness of the second petition, the Appellate Division went further in order to avoid any chance that the Family Court's order (which was an ACD rather than an outright dismissal) could "spawn legal consequences or be cited as precedent" and still used its discretion to vacate an already moot order. (138 AD3d at 560.) In sum, this court believes that the circumstances in the instant case do not allow it to proceed on the petition on the grounds that a mootness exception applies.

Accordingly, for the reasons above, the court is constrained to grant RM A.G.'s motion to dismiss the abuse and neglect petition without prejudice.