| Matter of Kayden H. (Kareena H.) |
| 2013 NY Slip Op 01549 [104 AD3d 764] |
| March 13, 2013 |
| Appellate Division, Second Department |
| In the Matter of Kayden H. Administration for Children'sServices, Respondent; Kareena H. et al., Appellants. |
—[*1] June K. Lee, New York, N.Y., for appellant Aida R. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Diana Lawless of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht ofcounsel), attorney for the child.
In a neglect proceeding pursuant to Family Court Act article 10, the mother appeals,and the grandmother separately appeals, from so much of (1) a fact-finding order of theFamily Court, Kings County (Danoff, J.), dated August 30, 2011, as, after a fact-findinghearing, found that each of them had neglected the subject child, and (2) an order of thesame court, also dated August 30, 2011, as denied their separate motions to dismiss thepetition insofar as asserted against each of them pursuant to Family Court Act §1051 (c).
Ordered that the first order dated August 30, 2011, is affirmed, without costs ordisbursements; and it is further,
Ordered that the second order dated August 30, 2011, is reversed, on the facts and inthe exercise of discretion, without costs or disbursements, and the separate motions of themother and the grandmother to dismiss the petition insofar as asserted against each ofthem pursuant to Family Court Act § 1051 (c) are granted.
The grandmother of the seven-month-old subject child left the child in the kitchensink with the water running, asking the child's mother, who was in the living room about10 feet away, to watch the child while she went into the next room to retrieve a birthcertificate for her other daughter. Moments later, while the mother and grandmother wereoutside the kitchen, the temperature of the water spiked and the child sustained burns tohis body. A neglect petition was filed against the mother and the grandmother, and,following a fact-finding hearing, the Family Court sustained the petition against both ofthem, finding that the mother and the grandmother had neglected the child by leavinghim unattended in the sink with the water running, causing him to [*2]sustain burns over his body when the water temperaturespiked. The mother and the grandmother separately moved to dismiss the petition insofaras asserted against each of them pursuant to Family Court Act § 1051 (c) on theground that the aid of the court was not required. The court denied those motions.
The mother's contention that the Family Court erred in admitting certain agency caserecords into evidence under the business records exception to the hearsay rule isunpreserved for appellate review (see Matter of Aphrodite Kristina Maria S. [Katrina W.], 68AD3d 879 [2009]; Matter of "Baby Girl" Q., 14 AD3d 392, 393 [2005]).
Contrary to the contentions of the mother and the grandmother, a preponderance ofthe evidence presented at the hearing supports the Family Court's finding that theyneglected the subject child (see Matter of Victoria CC., 256 AD2d 931, 932-933[1998]).
Nevertheless, although facts sufficient to sustain the petition were established, aneglect petition may still be dismissed if "the court concludes that its aid is not requiredon the record before it" (Family Ct Act § 1051 [c]). Under the circumstances ofthis case, the Family Court should have granted the separate motions of the mother andthe grandmother to dismiss the petition insofar as asserted against each of them pursuantto Family Court Act § 1051 (c). Following the incident, the mother completed allthe services required by the Administration for Children's Services (hereinafter ACS),including therapy sessions and parenting classes, and ACS did not request that themother complete any additional services. The grandmother, although not required to doso, also attended parenting classes with the mother. In January 2010, 18 months beforethe fact-finding hearing concluded, the child, upon ACS's consent, was returned to themother. In the interim, ACS, during home visits, documented that the mother and thegrandmother had taken steps to ensure that the child was not left unsupervised, and thathe was bathed appropriately. ACS noted in its progress notes that it had no safetyconcerns. The mother stated that the pipes in her apartment building have been replacedand, as a result, the water temperature no longer fluctuates. The foregoing demonstratesthat the incident on which the petition was based was an isolated one, that the mother andthe grandmother have been rehabilitated, and that the child is no longer at risk of beingneglected (see Matter of EustaceB. [Shondella M.], 76 AD3d 428 [2010]; Matter of Angela D., 175AD2d 244 [1991]; Matter of Robert W. [Francine H.], 30 Misc 3d 1231[A],2011 NY Slip Op 50304[U] [2011]). Accordingly, since the aid of the court was nolonger required to protect the child, the petition insofar as asserted against the mother andthe grandmother should have been dismissed (see Family Ct Act § 1051[c]).
The remaining contentions of the mother and the grandmother are without merit.Skelos, J.P., Chambers and Miller, JJ., concur.
Balkin, J., concurs in part and dissents in part, and votes to affirm both ordersappealed from with the following memorandum: I agree with my colleagues that thePresentment Agency met its burden of proving by a fair preponderance of the evidencethat the appellants neglected the subject child (see Matter of Samantha B., 5 AD3d 590, 591 [2004];Matter of Victoria CC., 256 AD2d 931, 932-933 [1998]). I disagree with theirconclusion that the Family Court's "aid is not required" (Family Ct Act § 1051 [c]).Consequently, I dissent from the majority's determination that dismissal of the petitionunder Family Court Act § 1051 (c) is warranted.
By leaving the seven-month-old infant alone in the kitchen sink, the appellants"fail[ed] . . . to exercise a minimum degree of care . . . inproviding the child with proper supervision or guardianship" (Family Ct Act §1012 [f] [i]; see Matter of LesterM., 44 AD3d 944, 945 [2007]; Matter of King v Perales, 153 AD2d694, 694-695 [1989]). First, it takes no specialized knowledge to know that one shouldnever leave an infant unattended in water, but the appellants did so here. Second, the[*3]appellants knew that the water in their building wassubject to temperature spikes, but they left the water running. Third, the infant was at riskof falling from the sink, but the appellants thought that watching the infant from anotherroom was adequate. I do not doubt that the appellants regret and are truly chastened bythis horrible incident, and I recognize that they have undergone training, but the incidentstemmed not from the lack of training, but of common sense. The Family Court'sresponsibility is to the child, and I agree with the Family Court that its responsibility hereis best fulfilled by an order of supervision over the appellants (cf. Matter of Eustace B. [ShondellaM.], 76 AD3d 428, 428 [2010]). I also note that the existence of a neglectfinding is a proper reason for denial of a motion to dismiss pursuant to Family Court Act§ 1051 (c), inasmuch as a finding of past neglect may prove significant in theevent of the necessity of any future court proceeding (see Matter of Imena V. [Dia V.], 91 AD3d 1067, 1068[2012]; Matter of Mary KateVV., 59 AD3d 873, 874-875 [2009]). Accordingly, I would affirm both ordersappealed from.