Cruz, In re
| Decision Date | 10 July 1986 |
| Citation | 121 A.D.2d 901,503 N.Y.S.2d 798 |
| Parties | In re Priscilla CRUZ, etc.--Gladys Juarbe, Respondent-Respondent, Commissioner of Social Services of the City of New York, Petitioner-Appellant. |
| Court | New York Supreme Court — Appellate Division |
E.B. Fishman, New York City, for petitioner-appellant.
B.H. Dildine, New York City, for Law Guardian.
Before SANDLER, J.P., and FEIN, MILONAS, ROSENBERGER and WALLACH, JJ.
Order, Family Court, Bronx County (Donald F. Mohr, J.), entered January 17, 1986, which, in a child protective proceeding pursuant to article 10 of the Family Court Act, dismissed the petition on the ground that the finding of neglect made in a prior proceeding with respect to respondent's older children cannot be used as the basis for a finding with respect to respondent's newborn child, reversed, on the law and on the facts, without costs, the petition is reinstated and a finding of neglect entered upon the unrebutted evidence before the Family Court, and the matter is remitted for a dispositional hearing. Pending that hearing, the child Priscilla shall remain in the custody of the Commissioner of Social Services.
Respondent, the natural mother of Priscilla C., first became known to the Office of Special Services for Children (SSC) in March 1982, when she was admitted to the New York Foundling Child Abuse Rehabilitation Program with her oldest daughter Mary Ellen, while her oldest child Francisco was voluntarily placed in foster care. On June 6, 1985, SSC was informed that respondent had handcuffed her children and left them alone in the house. Upon investigation, respondent admitted having handcuffed Francisco (aged 5) and Mary Ellen (aged 3), an epileptic, to the bed because they had misbehaved. Caseworkers observed that the children's wrists were raw and bleeding from handcuff injuries, that Mary Ellen had healing bruises up and down her arms, on her knee and on her ankles, and that Francisco had a mark on his thigh from a beating with a stick administered by respondent.
Respondent's three children were removed from her home and placed in foster care, and on June 8, 1985 child neglect proceedings were commenced against her. Respondent admitted in court, through counsel, that "she had handcuffed Mary Ellen and Francisco to the bed on numerous occasions, and in that way she used excessive corporal punishment." On June 19, 1985, the court found that Mary Ellen and Francisco were neglected children, and that Rosa Linda, then aged 1, was likely to become a neglected child. The matter was adjourned to September pending an investigation and report and a mental health study. At that time respondent was seven months pregnant with Priscilla.
Priscilla was born August 9, 1985. On August 15, 1985, the instant proceeding was commenced alleging that respondent was likely to become a neglectful mother in regard to Priscilla, based entirely upon the finding of neglect that had been made seven weeks previously. On September 13, 1985, a dispositional hearing was held for the three older children, which resulted in their being placed with the Commissioner of Social Services for a period of up to twelve months. At the conclusion of that hearing the attorneys agreed to dispense with a fact-finding hearing on Priscilla, and to proceed instead on written memoranda on the law and the facts. On January 17, 1986, the Family Court dismissed the petition, holding that the acts that were the basis of the original petition were not sufficiently contemporaneous to be used as a basis for the later proceeding, that a finding of neglect should not be based upon past deficiencies alone, and that the injuries suffered by the older children from being handcuffed to a bed were not likely to be inflicted upon the infant Priscilla. We disagree.
Family Court Act § 1046(a)(i) provides that "proof of the abuse or neglect of one...
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