Family Court, Bronx County, July 29, 2019

Kevin Ruiz for Administration for Children's Services, petitioner.

Israel Inyama for Jaquana J., respondent.

The Bronx Defenders (Julie Doyle of counsel) for John M., respondent.

The Legal Aid Society, Juvenile Rights Practice (Rebecca Ivry of counsel), Attorney for the Children.

A petition was filed by the Administration for Children's Services (hereafter ACS or petitioner) on December 17, 2018, alleging neglect of the subject children, Jayce J. and Avianna M., by their mother, Jaquana J. The petitions had initially named Jaquana J. and John M. as respondents; however petitioner withdrew the petitions as to Mr. M. before the fact-finding was commenced. The petitions had alleged that the children were neglected due to acts of domestic violence against respondent Ms. J., the children's mother, by Mr. M., in the [*2]presence of the children and that Ms. J. failed to protect the children from being exposed to such acts despite an order of protection that required Mr. M. to stay away from Ms. J. and the children.

Petitioner has been represented by Kevin Ruiz, Esq., and respondent mother was represented by Israel Inyama, Esq. (assigned County Law art 18-B counsel), with Mr. M. being represented by Julie Doyle, Esq., of the Office of The Bronx Defenders. The Legal Aid Society by Rebecca Ivry, Esq., was assigned as the Attorney for the Children.

The background of the instant petitions involves a prior petition filed by ACS on May 10, 2017, against John M., naming him as a respondent due to alleged acts of domestic violence against Jaquana J. (who at the time was not named as a respondent). The court on the date of filing of that action issued a temporary order of protection against Mr. M. as a full stay away order in favor of Ms. J. and the children. On September 25, 2017, although the case had been scheduled for fact-finding, the non-respondent mother Ms. J. appeared before the court for the first time and was assigned counsel and submitted to the jurisdiction of the court. The children were released to her under ACS supervision and the temporary order of protection was continued. ACS indicated they intended to call the non-{**65 Misc 3d at 243}respondent mother as their only witness in support of the petition.

The case had been adjourned to December 19, 2017, for fact-finding but the ACS attorney of record did not appear due to illness and there was no appearance by the non-respondent mother. The case was then adjourned to March 15, 2018, but administratively adjourned without the appearance of the parties to June 7, 2018.

On June 7, 2018, the case again was before the court for fact-finding and the court was advised that although Ms. J. had appeared, she refused to enter the courtroom, allegedly being fearful of respondent due to a recent incident. The case was then adjourned to July 17, 2018, and the fact-finding did not go forward because the non-respondent mother had appeared with the children who could not be brought in the courtroom if Ms. J. would be subjected to lengthy examination. The courthouse nursery was closed which is where the children could have been during the hearing.

The case was adjourned yet again to September 10, 2018, and on that date Ms. J. denied being served with a judicial subpoena and refused to testify without one. New counsel had to be assigned to represent her since her other counsel had left the assigned counsel panel. Finally, on December 14, 2018, the fact-finding commenced with ACS calling Ms. J. to testify as their witness in support of the petition. Ms. J. had what might be described as a total memory loss as to her relationship with respondent Mr. M. She could not remember her date of marriage to Mr. M. or making statements to the ACS caseworker as alleged in the petition and denied any acts of violence by respondent Mr. M. Upon her testimony, including cross-examination, being completed, ACS rested and respondent made a prima facie motion which the court granted in that no evidence was presented in support of the allegations in the petition.

On December 17, 2018, ACS filed the instant petition against respondents John M. and Jaquana J. When the fact-finding was commenced on April 1, 2019, ACS withdrew the petition against respondent John M. and proceeded against respondent mother Ms. J. The ACS caseworker testified that she received a phone call from respondent mother on June 4, 2018, who admitted despite there being an [*3]order of protection in place against Mr. M. (full stay away), she had prearranged contact with him and an altercation occurred on the street when Mr.{**65 Misc 3d at 244} M. punched her in the face with the children being present. Respondent mother admitted this was not the first such incident and further admitted she was allowing Mr. M. access to the children. On May 5, 2017, respondent mother reported an incident when Mr. M. threw a phone at her, busting her lip with the children being present. The caseworker further testified she had offered respondent domestic violence counseling but respondent refused.

On July 12, 2019, respondent Ms. J. testified and denied arranging contact with Mr. M. on June 4, 2018, or being aware of the full stay away temporary order of protection that was in place at the time. Otherwise, she could not recall the details of her conversation with the caseworker, only that she called the caseworker to let her know what was happening. She did not however offer any explanation as to how she and Mr. M. happened to have been in contact with each other before the altercation occurred. However, Ms. J. did admit to being in court when the full stay away temporary order of protection was continued against Mr. M.

Respondent Ms. J. requests that the court dismiss the instant petition, stating ACS brought these instant petitions only in retaliation for the failed 2017 action. In the alternative, she asks the court to dismiss these matters stating the aid of the court is not necessary.

The court disagrees. It is clear there is a history of domestic violence between Mr. M. and Ms. J. and that such violence has occurred in the presence of the children. In fact, respondent has filed two recent family offense petitions seeking an order of protection on behalf of herself and the children. (Docket O-XXXX/XX filed on May 7, 2019, was dismissed for failure to prosecute and docket O-XXXXX/XX filed on June 25, 2019, is currently pending.) The petitions allege Mr. M. has threatened Ms. J. with harm, including a threat with the use of a gun.

Pursuant to Family Court Act § 1012 (f) (i) (B), a neglected child is defined as one

"whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his[/her] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof."

{**65 Misc 3d at 245}This court entered an order of protection on May 10, 2017, that required John M. to stay away from Jaquana J. and the children Avianna M. and Jayce J. except for ACS arranged visits. That order continued beyond that date and was in place when respondent Ms. J. appeared and submitted to the court's jurisdiction. Ms. J. with counsel present was aware that the order was thereafter continued and therefore was in place on June 4, 2018. Respondent acknowledged knowing that the full stay away order was in place when she initiated a meeting with Mr. M. and on that date she was assaulted by Mr. M. on the street with the children being present.

It is well established that acts of domestic violence may be a basis of a neglect finding due to the children being at risk of physical or emotional harm. (See Matter of Mohammed J. [Mohammed Z.], 121 AD3d 994 [2d Dept 2014]; Matter of Jordan E., 57 AD3d 539 [2d Dept 2008].) Additionally, a neglect finding may be based on a parent's failure to protect a child from continued exposure to domestic violence. (Matter of Kathleen GG. v Kenneth II., 254 AD2d 538 [3d Dept 1998].) Respondent Ms. J. has shown flawed parental judgment by continuing to have contact with Mr. M. with the children being present knowing of his assaultive behavior and thus knowingly exposing the children to violence with a risk of physical [*4]and/or emotional harm.

Therefore, this court enters a finding of neglect against respondent Ms. J. due to her inadequate supervision and guardianship by allowing the children to be exposed to domestic violence despite an order of protection that was in place to protect the children from further exposure to such.