| Matter of Jaden C. (Phillip J.) |
| 2011 NY Slip Op 08979 [90 AD3d 485] |
| Dcmbr 13, 2011 |
| Appellate Division, First Department |
| In the Matter of Jaden C., a Child Alleged to be Neglected. PhillipJ., Appellant; Administration for Children's Services, Respondent, et al.,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Abbey Marzick of counsel), forAdministration for Children's Services, respondent. Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorneyfor the child.
Order of fact-finding, Family Court, New York County (Susan K. Knipps, J.), entered on orabout November 16, 2010, which found that respondent father neglected the subject child,unanimously reversed, on the law and the facts, without costs, the finding of neglect against thefather vacated, and the petition dismissed as against him.
The father testified at the fact-finding hearing that he accompanied his then eight-month-oldchild and the child's mother[FN1] from his home in Queens to the maternal grandmother's home in the Castle Hill neighborhood ofthe Bronx. When they arrived, he took the child to a bedroom and got him ready for bed. Afterplacing the child in the playpen, he told the mother he was going to leave, instead of staying thenight like he originally planned. According to the father, the mother started a fight with him, andthe grandmother blocked the door when he tried to leave the apartment.
The father further testified that, as he was trying to get around the grandmother, the maternaluncle and his girlfriend started banging and kicking the apartment door. According to the father,when the grandmother opened the door, the uncle ran inside and told the father he was [*2]going to murder him right now. Then the uncle ran to the backbedroom and returned with a gun. He pointed the gun at the father and pulled the trigger, but thegun jammed and the cartridges fell to the floor. The father grabbed a box cutter from his pocket,swung, and cut the uncle on the hand. The uncle then took the gun and repeatedly hit the fatheron the head, causing him to bleed profusely. While the uncle and father were fighting, the uncle'sgirlfriend was standing in the same room, holding the child. The father again attempted to leaveand was able to run out the front door and onto the street, where he flagged down a police car.The child was not physically injured during the fight.
The court, accepting the father's testimony regarding the chain of events, found that the fathershowed poor judgment in deciding to accompany the mother and child in the first place. Inreaching this conclusion, the court noted that the father had suspicions of drug dealing at thelocation and had a criminal history, albeit remote in time, which showed some familiarity withillegal narcotics activity.
A determination of neglect requires "first, that a child's physical, mental or emotionalcondition has been impaired or is in imminent danger of becoming impaired and second, that theactual or threatened harm to the child is a consequence of the failure of the parent or caretaker toexercise a minimum degree of care in providing the child with proper supervision orguardianship" (Nicholson vScoppetta, 3 NY3d 357, 368 [2004]). Petitioner presented no evidence to establish thatthe father knew or should have known that going to the grandmother's apartment would result ina dangerous situation for himself, the child's mother or his child. In support of its case, petitionerrelied on the father's statement to a caseworker, during an interview the day after the incident,that the mother's uncle was in the apartment when he arrived and that the uncle had threatenedhim previously. However, the father offered a different version of the events at the hearing andthe court did not make any findings crediting the caseworker's account. Moreover, even if theuncle was in the apartment when the father arrived, and had threatened him prior to the subjectincident, that does not establish that the father should not have gone there in the first place. Thereis no proof that the father knew the uncle's whereabouts when he agreed to escort the mother tothe location. Nor does it explain how accompanying the mother and child, in and of itself, wouldbe neglect especially since the father testified he did this because it was a dangerousneighborhood.
The court improperly relied upon the notation in a caseworker's notes that the uncle was aknown drug dealer and kept drugs, drug records and weapons in the grandmother's apartment.This information was provided by an emergency room doctor who did not testify at thehearing.[FN2] The court incorrectly attributed this statement to the father, though the source of the doctor'sinformation is unknown. "[O]nly competent, material and relevant evidence may be admitted" atthe fact-finding hearing (Family Ct Act § 1046 [b] [iii]). Although a caseworker's notesmay be admissible as a business record if petitioner can establish that the notes were made in theordinary course of business (Matter ofIsaiah R., 35 AD3d 249, 249-50 [2006]), to render the entire statement admissible underthe business records exception, all the participants in the chain must be under a business duty torecord the information and must be acting within the scope of that duty (Matter of LeonRR, 48 NY2d 117, 122 [1979]). Here, we have no idea who provided this information to thedoctor and cannot determine whether it was the father, the police or [*3]someone else. Even though the doctor is under a duty to reportsuspected child abuse and maltreatment (Social Services Law § 413), the critical statementwas not based on the doctor's own knowledge or observations made in the course of treating thefather. In the absence of any information about the source, there is no way to ascertain whetherthe information given the doctor came from someone who also had a business duty to report it orwould be admissible under another hearsay exception.
Petitioner concedes that the court improperly admitted both the father's criminal history andthat of the uncle; thus, this evidence cannot be relied on as a basis for sustaining the neglectfinding. Similarly, the fact that a fight ultimately occurred between the uncle and the fathercannot support a neglect finding in the absence of any proof that the father was the person whobrought the gun to the location or that he was the aggressor in the incident. Moreover, this wasnot the theory on which the court made its neglect finding.
Beyond the inadmissible hearsay contained within the caseworker's notes, petitioner did notprovide any evidence that the father knew or should have known of the uncle's drug dealings,knew of the presence of drugs and weapons in the grandmother's home, or knew the uncle wouldbe there when he escorted the mother to the location. Further, the father testified at the hearing,but petitioner never asked the father about these issues. Thus, the father's decision to accompanyhis child and the child's mother to the grandmother's house, even if it was poor judgment, did notamount to an actual failure to provide a minimum degree of care (Family Ct Act § 1012 [f][i] [B]; see Nicholson, 3 NY3d at 368). Concur—Saxe, J.P., Friedman,Moskowitz, Freedman and Richter, JJ.
Footnote 1: The mother entered a 1051Asubmission to the court's jurisdiction, which resulted in a finding of neglect without admissionbased on all allegations in the petition.
Footnote 2: The caseworker who testified atthe hearing was not the person who spoke to the doctor.