| Matter of Brad I. (Brad J.) |
| 2014 NY Slip Op 03555 [117 AD3d 1242] |
| May 15, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Brad I., a Child Alleged to beNeglected. Broome County Department of Social Services, Respondent; Brad J.,Appellant, et al., Respondent. |
Christopher A. Pogson, Binghamton, for appellant.
Albert Aaron, Broome County Department of Social Services, Binghamton, forBroome County Department of Social Services, respondent.
John M. Scanlon, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County(Connerton, J.), entered October 29, 2012, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate the subject child to beneglected.
Respondent Tiana K. (hereinafter the mother) and respondent Brad J. (hereinafter thefather) are the parents of three children—Dominick J. (born in 2009), Emotions J.(born in 2010) and Brad I. (born in 2011), the latter of whom is the subject of thisproceeding. The record reflects that Dominick was removed from the mother's care inSeptember 2010, and Emotions was placed in foster care shortly after her birth. None ofthe children ever resided with the father. In October 2010, petitioner commenced aneglect proceeding against the mother with respect to Dominick and, in December 2010,commenced a similar proceeding against the mother with [*2]respect to Emotions. The mother thereafter made certainadmissions and, by order entered September 1, 2011, Family Court (Pines, J.) adjudicatedDominick and Emotions to be neglected children and continued their placement withpetitioner.
In the interim, in or about January 2011, the mother stopped by the father's residenceto borrow some money. According to the father, when he went upstairs to retrieve therequested funds, Dominick, who apparently was visiting for the evening, was crying inhis playpen.[FN1]
The father picked up Dominick and came back downstairs, whereupon heencountered an armed assailant, who also was demanding money. The assailant shot thefather—while the father was holding Dominick in his arms—and fled thescene. Although the mother and the father apparently were the subject of an indicatedreport for inadequate guardianship based upon this incident, it does not appear thatpetitioner commenced a neglect proceeding against either parent with respect toDominick as a result thereof. Approximately one month later, a search warrant wasexecuted for the father's residence[FN2]
and, according to a local narcotics detective, the father admitted to using cocaine andmarihuana and to selling "small amounts of both" to support his habit.[FN3]
Following these events, the mother became pregnant with Brad. Shortly after hisbirth, the child entered foster care and petitioner commenced the instant proceedingagainst the mother and the father, alleging that they derivatively neglected Brad basedupon—in large measure—their conduct with respect to Dominick in thecontext of the home invasion incident. Following a fact-finding hearing, Family Court(Connerton, J.) adjudicated Brad to be a neglected child and, after a dispositionalhearing, placed the father under petitioner's supervision.[FN4]
This appeal by the father ensued.[FN5]
[*3] Pursuant to Family Ct Act § 1046 (a) (i),"proof of the abuse or neglect of one child shall be admissible evidence on the issue ofthe abuse or neglect of any other child of . . . the respondent." However,"[e]vidence of neglect of one child typically may not serve as the sole basis for a findingof neglect [of another child, unless] the nature of the direct [neglect], notably its duration[and] the circumstances surrounding its commission[,] . . . evidence[s]fundamental flaws in the respondent's understanding of the duties of parenthood" (Matter of Benjamin VV. [LarryVV.], 92 AD3d 1107, 1109 [2012] [internal quotation marks and citationsomitted]; see Matter of XiomaraD. [Madelyn D.], 96 AD3d 1239, 1240 [2012]; Matter of Michael N. [JasonM.], 79 AD3d 1165, 1167 [2010]; Matter of Landon W., 35 AD3d 1139, 1141[2006])—flaws that are "so profound as to place any child in his or her care atsubstantial risk of harm" (Matterof Joanne II. [Thomas II.], 100 AD3d 1204, 1205 [2012]; accord Matter of Kayden E. [LuisE.], 111 AD3d 1094, 1096 [2013], lv denied 22 NY3d 862 [2014]).Contrary to the father's assertion, petitioner's failure to commence a direct neglectproceeding against him with respect to Dominick does not bar petitioner frommaintaining this derivative neglect proceeding against him with respect to Brad.Similarly, the fact that Brad had yet to even be conceived—much lessborn—at the time of the home invasion or the search of the father's residence isnot dispositive, as the relevant inquiry is whether the evidence of the direct neglect ofone child, i.e., Dominick, "is so proximate in time to the derivative proceeding that it canreasonably be concluded that the condition still exists" (Matter of Jamarra S. [JessicaS.], 85 AD3d 803, 804 [2011] [internal quotation marks and citation omitted];see Matter of Darren HH.[Amber HH.], 68 AD3d 1197, 1197-1198 [2009], lv denied 14 NY3d703 [2010]; Matter of EvelynB., 30 AD3d 913, 914-915 [2006], lv denied 7 NY3d 713 [2006]). Thatsaid, our review of the record fails to disclose sufficient proof to support a finding thatthe father neglected Dominick in the first instance and, therefore, the finding ofderivative neglect as to Brad necessarily cannot stand (see Matter of Andre G., 64AD3d 913, 914-915 [2009]).
Family Court predicated its finding of derivative neglect as to Brad upon what itdeemed to be the father's demonstrated "lack of judgment with [respect to]Dominick"—citing the father's decision to admit the mother to his residence whileDominick was present, the father's admitted drug use/alleged sales, his correspondingfailure to "voluntarily involve himself in services to address his deficits as a parent" andhis conduct during the January 2011 home invasion. Even assuming that the father hadbeen ordered to have no contact with the mother while Dominick was in his care(see note 1, supra), the violation of any such order—standingalone—would not be sufficient to sustain a finding of neglect (cf. Matter of Jada K.E. [RichardD.E.], 96 AD3d 744, 745 [2012]; Matter of Andre G., 64 AD3d at 915).Additionally, although the father admittedly smoked marihuana on what could beregarded as a regular basis, the record is bereft of any evidence that the father used (orsold) drugs while Dominick (or any other child) was in his care, nor is there sufficientevidence to support a finding that his conduct in this regard posed an imminent risk ofinjury or impairment (see Family Ct Act § 1012 [f] [i]) to Dominick(or to any of his children) (compare Matter of Alyssa WW. [Clifton WW.], 106 AD3d1157, 1158 [2013]).[FN6]
As for the father's asserted (and unidentified) parenting deficits, there is no indicationthat the father failed to comply with or avail himself of any court-ordered services (compare [*4]Matter of Harmony S., 22 AD3d 972, 973[2005]).
Finally, with respect to the home invasion incident, although we agree that usingone's child as a human shield to ward off an armed intruder indeed would constitute afundamental misunderstanding of the duties of parenthood, the record does not supportFamily Court's findings that the father "grabbed" Dominick before "return[ing] to facethe gunman" or that the father picked up Dominick "believing that a third personwouldn't shoot him if he was holding a child." Even disregarding the father's testimonyas to the sequence of events leading up to the shooting, the testimony of petitioner'scaseworkers—at best—establishes that the father picked up Dominick, whoapparently was upset and crying, at some unspecified point while the intruder waspresent in the home.[FN7]
Such testimony, in our view, falls far short of establishing that the father—intotal disregard of both his parental responsibilities and his child's safety—usedDominick in an attempt to dissuade or repel the armed intruder. Absent evidence that thefather neglected Dominick by engaging in conduct that posed an imminent threat to hiswelfare, there can be no finding of derivative neglect as to Brad (see Matter of AndreG., 64 AD3d at 914-915; Matter of Desmond LL., 61 AD3d 1309, 1309-1310[2009]; compare Matter ofBrandon T. [Guillaume T.], 114 AD3d 950, 950-951 [2014]; Matter ofXiomara D. [Madelyn D.], 96 AD3d at 1240-1241; Matter of Darren HH.[Amber HH.], 68 AD3d at 1198). Accordingly, Family Court's order is reversed.
McCarthy and Garry, JJ., concur.
Lahtinen, J.P. (dissenting). Inasmuch as a sound and substantial basis in the recordsupports Family Court's finding of derivative neglect, I respectfully dissent. A parentwho "misus[es] a drug or drugs" may be found to have neglected his or her children(Family Ct Act § 1012 [f] [i] [B]) and, unsurprisingly, placing one's"children in near proximity to accessible narcotics and to the very dangerous activity ofnarcotics trafficking . . . pose[s] an imminent danger to the children'sphysical, mental, and emotional well-being" (Matter of Paul J., 6 AD3d 709, 710 [2004]; see Matter of Brandon R. [JamesU.], 114 AD3d 1028, 1028 [2014]; Matter of Jared M. [Ernesto C.], 99 AD3d 474, 475[2012]). Family Court credited evidence that respondent Brad J. (hereinafter the father)regularly used and sold marihuana and cocaine, and he admittedly cultivated marihuanaat his residence.
[*5] The majority finds thisevidence to be insufficient to support a finding of neglect because "the record is bereft ofany evidence that the father used (or sold) drugs while Dominick (or any other child) wasin his care, nor is there sufficient evidence to support a finding that his conduct in thisregard posed an imminent risk of injury or impairment" to his children. When policeraided the father's residence shortly after the shooting, however, they discovered abedroom with furnishings, clothing and toys. Given this proof of a child's regularpresence, the father's regular use and sale of drugs could readily be construed as placinghis children in imminent danger of impairment such as to support a finding of neglect(see Matter of Brandon R. [James U.], 114 AD3d at 1028-1029; Matter of Lavountae A., 57AD3d 1382, 1382-1383 [2008], affd 12 NY3d 832 [2009]). In my view,Family Court could further determine from this evidence that the father's actionsexhibited "such an impaired level of parental judgment as to create a substantial risk ofharm to any child under [his] care" that would warrant a finding of derivative neglect (Matter of Andrew DeJ. R., 30AD3d 238, 239 [2006]; seeMatter of Eugene L. [Julianna H.], 83 AD3d 490, 490 [2011]).
Ordered that the order is reversed, on the law, without costs, and petitiondismissed.
Footnote 1:The record suggests thatthe mother and the father had been advised by petitioner that they should not be togetheraround Dominick—purportedly due to domestic violence issues. However, to theextent that such suggestion was reduced to a court order, that order does not appear in therecord on appeal.
Footnote 2:None of the childrenwere present at the time of the search.
Footnote 3:The bulk of counsel'sobjections to the testimony regarding the specific items seized during the search weresustained, but the father did admit that he had "several juvenile mari[h]uana plants in[his] home" at that time.
Footnote 4:Although thefact-finding order lists both the mother and the father as named respondents, the motherapparently consented to the child's placement with petitioner pending her completion ofservices. Hence, the dispositional order pertains only to the father.
Footnote 5:The attorney for thechild supports the father's argument that there is insufficient evidence to sustain theunderlying finding of neglect.
Footnote 6:Indeed, petitioneracknowledged at the dispositional hearing that it did not "know what the impact of [thefather's] smoking [was] upon the children" and conceded that it had "no direct evidence"that the father's use of marihuana "had negatively impacted his care of [any of] thechildren."
Footnote 7:As recounted by one ofpetitioner's caseworkers, "[The father] said that he had told [the mother] to wait for aminute while he went upstairs to get whatever she was asking for, . . . andthat when he came downstairs there was a male in his apartment and the male becameupset with him. I believe [the intruder] demanded money and Dominick was upset so [thefather] picked up Dominick and [the father] was shot in the arm." Similarly, another ofpetitioner's caseworkers testified, "[The father] told me that he was at his apartment,someone knocked on the door, [the mother] opened the door, and the gentleman came inand, I guess, it was an alleged robbery, is how he described it. He said he didn't have anymoney. He picked up his son and the gentleman shot him in his arm."