In re J.E., 2022-50090

CourtNew York Family Court
Writing for the CourtTRACEY A. BING, J.
PartiesIn the Matter of J.E. and B.E.
Decision Date07 February 2022
Docket Number2022-50090

In the Matter of J.E. and B.E.

No. 2022-50090

Family Court, Bronx County

February 7, 2022


Unpublished Opinion

Ms. Mary Katherine Cunningham, Esq. and Ms. Iman Akbar, Esq. for the petitioner, the Administration for Children's Services (ACS);

Mr. Joseph Moliterno, Esq. for the respondent mother, W. J.;

Ms. Mimi Lei, Esq. of the Legal Aid Society for the children.

TRACEY A. BING, J.

A petition was filed by the Administration for Children's Services (petitioner/ACS) on November 25, 2019, alleging that W. J. (respondent), neglected her children J. E. (fourteen years old) and B. E. (thirteen years old). Ms. Mary Katherine Cunningham, Esq. and Ms. Iman Akbar, Esq. represented ACS; Mr. Joseph Moliterno, Esq. represented the respondent; Ms. Mimi Lei, Esq. of the Legal Aid Society represented the children.

The petition alleges that the respondent failed to provide the children with proper supervision or guardianship by inflicting excessive corporal punishment. Specifically, and referring to the petition, it is alleged that according to the subject child B., on or about November 11, 2019 the respondent grabbed B. by the neck, pushed her against the wall and punched her in the face during an argument in the living room. The non-respondent father, J. E., walked into the living room and saw B. kneeling on the floor and crying. B. told her father that the respondent punched her. The respondent stated that she pulled B. by the arm out of her adult-sibling's bedroom during an argument with the adult sibling's girlfriend.

The Court held a virtual hearing via Micro Soft Teams during the pandemic. All witnesses and counsel appeared by video along with the jurist. On January 6, 2021, the fact-finding hearing commenced. The respondent was not present in Court. Counsel for the respondent did not participate at the commencement of the fact-finding hearing. On July 22, 2021 the respondent appeared in Court. The Petitioner rested submitting four exhibits into evidence and presenting the testimony from their only witness, Child Protective Specialist J. S. The respondent made an oral prima facie motion to dismiss the petition. The oral motion was denied on September 29, 2021. The respondent was provided an opportunity to present her case. The hearing ended on November 9, 2021 after the respondent's testimony. The attorney for the children rested without presenting evidence or witnesses. Counsel filed written summations by November 30, 2021.

The petitioner entered the following four exhibits into evidence:

Petitioner's No.1 B.'s birth certificate
Petitioner's #2 J.'s birth certificate
Petitioner's #3 New York Police Department certified and delegated records (thirty-three pages)
Petitioner's #4 Certified Bronx County Criminal Complaint against the respondent (three pages).

The Court does not consider hearsay statements within the admitted records unless a hearsay exception applies. The Court finds that there is no hearsay exception applicable to the hearsay statements contained within the records, namely the non-respondent father's account to the reporting law enforcement officer. The Court does not consider hearsay statements made by the non-respondent father to CPS J. S.

The Petitioner called Child Protective Specialist J. S. as a witness. Ms. J. S. testified that in November 2019 she spoke with the respondent mother, W. J., J. E. (non-respondent father), and the children B. and J. B. told Ms. J. S. that she was in the bedroom with her adult sibling ("A. S.") using his phone watching videos. The respondent told her to leave her adult sibling's bedroom. The respondent grabbed her by the arm to take her out of the room, then grabbed her by the neck and hit her in the face. B. stated that she fell down when she was punched. Her father came out of the bathroom into the living room and B. told her father that the respondent hit her in the face. J. spoke with Ms. J. S. on November 12, 2019. He told Ms. J. S. that he was in the lobby with his friends when he heard B. crying. He came upstairs. B. then told him that the respondent grabbed her by the neck and punched her in the face.

The respondent spoke with Ms. J. S. on November 12, 2019. The respondent told Ms. J. S. that she was cooking in the kitchen while the child B. was sitting on the sofa in the living room. She then realized that B. had gone to the adult sibling's room. The respondent did not want B. in A. S.'s room due to an unrelated family issue. The respondent went and grabbed B. by her arm and pulled her out of the room to sit on the sofa. The non-respondent father emerged from the bathroom and saw B. crying. B. told her father that the respondent hit her. Ms. J. S. did not testify about observations of bruises or marks on the child B.

There was no cross examination of the petitioner's witness. The petitioner rested. The Court denied the respondent's oral prima facie motion to dismiss the petition. On the adjournment date, the respondent presented her case.

The respondent testified that she was arrested on November 11, 2019 because she was having an argument with A. S.'s girlfriend. On cross-examination, the respondent testified that she was arrested for hitting and strangling her daughter, "yes, supposedly". The respondent testified that she was arguing with A. S. because she wanted him to remove his girlfriend from her home. During the argument the respondent grabbed B. from A. S.'s bedroom and placed her on the sofa. She then saw the non-respondent father call the police. The respondent testified that she grabbed B. by the hand/arm to take her out of A. S.'s bedroom after asking her to leave the bedroom approximately five times. She wanted B. out of the bedroom as the respondent was frustrated with A. S. and his girlfriend. The respondent did not want B. to hear or be part of an ongoing argument. The argument between the respondent and A. S. did not escalate to a physical altercation; it remained a verbal argument. The respondent testified that she sat B. on the sofa. After placing B. on the sofa, the non-respondent father came into the living room. Thereafter, J. came into the apartment.

At the conclusion of the respondent's case all parties rested. The attorney for the child subpoenaed the non-respondent father to testify. The non-respondent father did not appear in Court. The attorney for the child stated that she would not present the non-respondent father's testimony. The hearing concluded with written summations due on November 30, 2021. The Court reserved decision.

In summations, both the petitioner and the attorney for the child seek a finding against the respondent. The petitioner and attorney for the children argue that J. corroborated B.'s out-of-court statement. The petitioner argues that B.'s consistent statement to multiple sources supports the statement's credibility. The attorney for the children further argues that the respondent's accounts of what occurred and her arrest, together with the NYPD records corroborate the child's out-of-court statement.

In summation, the respondent argues that B.'s out-of-court statements are not corroborated. Other than the child's statements to the child protective specialist, her father and her brother, there is no proof that the respondent inflicted excessive corporal punishment on B.

Article 10 of the Family Court Act defines a neglected child as a child less than eighteen years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of his parent or other person legally responsible for his care to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment". (FCA §1012 [f] [i] [B]).

There are two requirements imposed by the Family Court Act for...

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