Introduction

On January 19, 2021, the Respondent father, Mr. G ("Respondent"), filed a motion to dismiss the neglect petitions against him, pursuant to FCA § 1051(c) on the ground that the aid of the court was no longer required given the corrective actions Mr. G has taken since the filing of the petition. Respondent's motion contains his own affidavit as well as exhibits which include letters from service providers, various certificates of completion, a court report and orders. Petitioner Administration for Children's Services ("ACS") filed opposition papers consisting only of counsel's affirmation. The Attorney for the Child ("AFC") filed an affirmation, with a court report and order attached, strongly supporting the Respondent's motion on the same grounds as it was brought. The non-respondent mother, Ms. G also stated her support for the dismissal in court on January 27, 2021.

On November 14, 2018, the Petitioner ACS filed this neglect petition against Mr. G alleging that he neglected M as well as his two older siblings, P and H, by his misuse of alcohol and that, while intoxicated, [*2]he engaged in an act of domestic violence towards the children's mother Ms. G, in their presence. See Neglect Petitions NN-XXXXX-X/18, filed Nov. 14, 2018.

At filing, the Court released the children to their mother under ACS supervision and issued a full stay-away temporary order of protection ("TOP") against the Respondent father on behalf of the children and their mother. Mr. G was incarcerated at that time related to the incident alleged in the neglect petition and was produced in court on the next date on which the TOP was modified to allow for supervised visits. On December 9, 2018, H and P tragically lost their lives during a fire at their grandfather's apartment.^[FN1] As of that date, their father remained incarcerated and had not yet visited with them since his arrest. Mr. G was subsequently released on bond and the Court allowed phone and electronic contact between him and his partner and son as well as permission to attend the funeral of his daughters. On April 4th, the Court further modified the orders, based on Mr. G's engagement in alcohol treatment, to allow him to have unsupervised contact with his son at the mother's home until 8:00 PM daily as long as he was not under the influence and did not subject M to any acts of violence.

On September 23, 2019, ACS filed an order to show cause alleging an incident of physical violence between the Respondent and Ms. G and requesting he be excluded from the home. The motion further alleged that Mr. G had been inconsistent in attending his alcohol treatment and had had several positive toxicologies for alcohol. The Court granted the exclusion order and limited Mr. G to supervised visits with his son and contact with Ms. G outside of M's presence. On December 7, 2019, Mr. G followed his treatment provider's recommendation and entered an upstate residential alcohol treatment program where he remained for one month and then resumed his outpatient program. Mr. G also entered the "Ready, Willing and Able" program ("RWA") which provided him with [*3]housing as well as vocational and sobriety support services. In the months after Mr. G returned to the city, his visits with M progressed from fully- to partially-supervised until September 9, 2020 when the Court released M to both his father and mother with Mr. G continuing to engage in services and spend the nights residing at the RWA program. On January 27, 2021, on consent of all counsel,^[FN2] the Court issued an order allowing Mr. G to spend one night per week in the family home which would not interfere with his remaining in RWA. Mr. G has stated his intention to remain in the RWA program until his graduation in the fall of 2021.

The record before the Court includes several ACS reports to the Court including one that was submitted on October 23, 2020, Mr. G's sworn affidavit in support of his motion, and letters from both the residential, Arms Acres, and outpatient substance abuse treatment programs, Realization Center, as well as from RWA, and certificates of completion of chemical dependency, domestic violence, anger management and parenting skills programs, all attached as exhibits to the Respondent's Motion to Dismiss and the AFC's affirmation in support. Additionally, the Court held a multi-day hearing pursuant to FCA § 1028 ending on September 4, 2020 in which testimony was given by both ACS Caseworker James and Mr. G. ACS stated it would agree to the joint release occurring two weeks later, but not on that date. In the decision rendered granting the joint release after that hearing, the Court stated as follows:

Mr. G testified honestly and sincerely about his use of alcohol to manage the pain of the loss of his mother and then, tragically, that [*4]of his two young daughters in December of 2018. Mr. G fully acknowledged the impact of his alcohol use on his behavior specifically towards Ms. G and the negative impact on his son M. The Court credits Mr. G's commitment to his sobriety which he has demonstrated through 9 months of negative random toxicologies. Mr. G also spoke emotionally about the difficult journey he and Ms. G have gone through since P and H's death both as parents and as a couple and of his desire to be fully present as a father for M.

Five months have passed since that order was entered and no concerns have been raised about Mr. G's sobriety or the safety of his son during their time together.

Mr. G completed his chemical dependency services at Realization Center on January 5, 2021. See Exhibit H, attached to Respondent's Motion to Dismiss, Discharge letter and Certificate. He has now remained sober for over one year including through the anniversaries of his daughters' and his mother's deaths. Additionally, on his own, Mr. G sought out and has been engaged at the RWA program for more than one year and plans to continue there until the fall, a total of 20 months. The program provides comprehensive services including substance abuse services and vocational training. Mr. G is studying for his GED and, in a section of his affidavit labeled "GOALS," Mr. G stated that he had obtained both his regular and then his commercial driver's license during his time in the program and aspired to become an MTA bus operator and hopes to be able to buy a house for his family. Finally, Mr. G and Ms. G requested a referral to couple's counseling so they could work together on their relationship repairing the harm that had been done and managing the trauma of the loss of their daughters; they began this counseling in December 2020.

The written ACS progress report provided to the Court dated July 20, 2020, stated:

Mr. G shared that he's happy and is serious about his treatment and recovery. Mr. G is currently employed with the RWA program. He disclosed to this writer that he has opened a savings [*5]account for the Subject Child M G, and has been depositing a portion of his weekly paycheck to the account. Mr. G appears to be in a good place despite the COVID-19 which could be an added stress factor for most families.

See Exhibit A, attached to AFC's Affirmation in Support of Motion.

Respondent's motion seeks dismissal pursuant to FCA §1051(c) in that no further aid of the Court is required. FCA §1051 relates generally to various circumstances where courts may sustain or dismiss an Article 10 petition. Section 1051(c) contains two circumstances in which petitions may be dismissed: (1) "if facts sufficient to sustain the petition are not established" or (2) "if, in a case of alleged neglect, the court concludes that its aid is not required on the record before it." Under either circumstance, the court "shall dismiss the petition and shall state on the record the grounds for dismissal." FCA §1051(c). The plain language of the statute implies that the "aid of the court" prong may be granted in any neglect case prior to a fact-finding hearing as long as there is sufficient basis for the court's conclusion "on the record before it." That record could include the court file, prior court appearances on the case and the affidavits and exhibits attached to a motion. The statutory language further supports this interpretation by referring to cases of "alleged neglect," indicating that such a motion is not available once an adjudication has occurred. The plain language also establishes that the existence of neglect is not a bar to dismissal under this second prong. Given this statutory language, the legislature clearly intended §1051(c) to preserve the rehabilitative purpose of Article 10 by acknowledging that, even where a parent may have fallen short in the care of their children in a way which constitutes neglect under the law, the parent may have sufficiently learned from this error in judgment prior to the fact-finding hearing to the extent that further involvement of the court and the child welfare system is unnecessary.

It is significant to note that the heading of FCA § 1051 is [*6]"sustaining or dismissing a petition" rather than "orders after fact-finding hearing." Similarly, 1051(c) refers to the "record before" the Court, not the record at the fact-finding or any other type of hearing or the evidence submitted at a hearing. In fact, at no point in the body of the section do the words "fact-finding hearing" appear. If the Legislature had intended this relief to be limited to after a hearing, it would have been logical to include that language.^[FN3]

Support for the proposition that a fact-finding hearing is not the only way a record sufficient for dismissal under the 2nd prong of 1051(c) can be established is found in Matter of Angel R., 285 AD2d 407 [1st Dept 2001]. In that case, the Family Court dismissed a neglect case because of the petitioner's lack of readiness to proceed at the fact-finding. While the First Department did not condone the dismissal on this basis, it did find dismissal to be proper because the court's aid was not required given that the two older children were living in Puerto Rico with their grandmother and the youngest child was already under the petitioner's supervision. Thus, the record below was found sufficient to establish the second prong of 1051(c) even without a fact-finding hearing.

There is guidance in the factors to consider in deciding whether to dismiss this case due to the Court's aid not being required in the [*7]appellate decisions that squarely address this prong of 1051(c). Compare, In re Eustace B., 76 AD3d 428, 428 [1st Dept 2010] (Court's aid not needed as the Court determined no basis for supervision or for respondent's participation in referrals, the domestic violence was an isolated incident and the relationship had ended) with In re Naomi S., 87 AD3d 936, 937 [1st Dept 2011] (Family Court appropriately denied respondent's motion to dismiss "since the dangers the mother posed to the child had not passed and thus the court's continued aid was required").

The Second Department's decision in In re Kayden H., 104 AD3d 764, 764 [2d Dept 2013] is particularly illustrative here. The Appellate Division found that, "although facts sufficient to sustain the petition were established," the Family Court should have dismissed the petition pursuant to FCA § 1051(c) because the mother and grandmother had completed all of the services ACS had requested of them, the child was returned to the mother during the course of the proceeding, and the ACS progress notes noted "no safety concerns." Id. at 765-66. The Second Department concluded that "the foregoing demonstrates that the incident on which the petition was based was an isolated one, that the mother and grandmother had been rehabilitated, and that the child was no longer at risk of being neglected." Id. at 766.

In another Second Department decision, In re Vernice B., 129 AD3d 714, 715 [2d Dept 2015], which was clearly decided under the second prong of 1051(c), the Court reversed a mid-fact-finding dismissal because it disagreed with the Family Court's conclusion that its aid was not required since it was based solely on the subject child's not being fully receptive to services. The Court found that ACS should have been allowed to fully develop its record given that the child's resistance to services was not the same as services not being required. These facts are certainly distinguishable from the case at hand which is much more akin to the scenario in Kayden H. See also, In re Phillips N., 104 AD3d 690, 692 [2d Dept 2013] (dismissal under 1051(c) properly denied where the mother never admitted responsibility for her daughter's injuries).

Petitioner has argued that the record here is insufficient to establish the lack of need for continued court involvement. This Court disagrees. I have presided over this matter since it was filed more than two years ago and have seen this family persevere through the horrific tragedy of losing their two little girls in a fire. I have witnessed the commitment of both parents to work through the issues in their relationship to co-parent their son who was only two when his sisters died. I have been impressed with the care and thought they have put into their efforts, recently requesting a couples therapy referral to help them engage further in their "healing process." See Exhibit G, attached to Respondent's Motion to Dismiss, ACS Report dated 10/23/20, p. 2. The record here demonstrates that the Respondent has completed all of the services requested by ACS (as well as engaging in additional services he sought on his own) and there are no ongoing safety concerns for M. Aside from alleging a need for a hearing to create more of a record, ACS does not dispute any of the factual allegations in the Respondent's motion. In Kailynn I., 52 Misc 3d 740 (Fam Ct Kings Co 2016), this Court held that, as long as the record, in whatever form, established that "no further legitimate purpose would be served by continuing ACS's involvement" with this Respondent, the case should be dismissed pursuant to FCA 1051(c).^[FN4]

ACS's substantive objection is simply that the Respondent might relapse which could lead to further acts of domestic violence. This possibility always exists for anyone in recovery and is not reason alone to continue court oversight of this family. Here, as argued by the Respondent in his motion papers, it is clear that Mr. G has taken ownership of his recovery and has demonstrated his commitment to his sobriety and being present for his family. As he himself states, "I will keep doing everything to the best of my ability to be a great father and husband long after ACS is out of my life." See Respondent's Affidavit dated 1/19/21 ¶ 16. This Court believes that it is the memory of his daughters that will keep Mr. G focused on his goals and that ACS's continued involvement in this family after more than two years is only causing added stress. The AFC notes in her affidavit,

[T]his family has made such tremendous progress even during the COVID-19 pandemic Additionally this is a family who has endured the significant trauma of losing their two daughters only weeks after this case was initially filed. No one is a model parent after such a devastating loss, and these parents have had to process their grief all under the eyes of ACS and the assumed fear that M too could be removed from their care. This is an enormous burden for a family to bear, yet this family has moved forward and proven their resilience. It would be in the interests of justice to dismiss this case so they can be a family and heal in private.

AFC's Affirmation, ¶ 13.

Significantly, Ms. G has also stated her support for this dismissal.

Therefore, ACS's and this Court's interventions have served their purpose. The Court is confident that Mr. G will continue in the RWA program as well as seek out any additional support he needs to maintain his sobriety without court orders in effect and that Mr. G will continue to act in her son's best interest as she has throughout the life of this case. Therefore, upon this Court's careful review of the record which includes the court file and proceedings, the papers submitted including exhibits, and arguments by counsel, the Respondent father's motion to dismiss pursuant to Family Court Act § 1051(c) is granted on the ground that the Court's aid is no longer required.

WHEREFORE, the petition against Mr. G is dismissed with prejudice. Notify parties.