In re Melanie S.
| Citation | 2010 N.Y. Slip Op. 51142,28 Misc.3d 1204,957 N.Y.S.2d 637 |
| Decision Date | 23 June 2010 |
| Docket Number | No. xx/10.,xx/10. |
| Parties | In the Matter of MELANIE S., Madelina S., James S., Jr. (deceased), Alyssa Ebony S., Children under the age of Eighteen Alleged to be Neglected by Krystal T., James S., Sr., Respondents. |
| Court | New York Family Court |
OPINION TEXT STARTS HERE
Christopher Keating, Esq., Special Assistant Corporation Counsel, New York City Children's Services, Brooklyn, NY, Patrick Garcia, Esq ., New York, for respondent mother.
Joan James, Esq., Brooklyn, for respondent father.
Brian Zimmerman, Esq., Brooklyn, Attorney for the Child Alyssa.
Jill Wade, Esq., Legal Aid Society, Juvenile Rights Project, Brooklyn, Attorney for the Children, Melanie and Madelina.
Krystal T. is the mother (hereinafter “respondent mother”); James S., Sr. is the father (hereinafter “respondent father”) and Arlene Ocasio is the maternal grandmother of the subject children, Melanie S. (date of birth, April 17, 2006) and Madelina S. (date of birth, February 23, 2005). James S., Sr. is also the father of the child Alyssa Ebony S. (date of birth, June 18, 2008). Her mother is not a respondent in this proceeding. Prior to the commencement of this proceeding, Melanie, Madelina and their baby brother, James S., Jr. (date of birth, October 14, 2007), lived with respondent mother, a maternal uncle, a maternal aunt and respondent maternal grandmother at a Women in Need shelter located at 1738 East New York Avenue, Brooklyn, New York.
On January 10, 2008, James S., Jr. died and New York City Children's Services (hereinafter “NYCCS”) removed Melanie and Madelina from the care of the respondents without a court order. On January 14, 2008, NYCCS filed neglect petitions against all three respondents. The petitions allege that respondent mother and respondent father neglected the child, James S. Jr. by failing to provide adequate supervision and guardianship. Specifically, the petitions allege that on January 10, 2008, at approximately 1:00 AM, the mother, the father and James, Jr. left the maternal grandmother's home and traveled to 172 Vernon Avenue in Brooklyn. The petitions allege that 172 Vernon Avenue was an abandoned building without heat or electricity. Access to the building was obtained through a window the father broke on a prior occasion. The baby fell asleep in a stroller. The parents fell asleep on a mattress on the floor.
At approximately 5:00 or 6:00 AM the baby started crying. Respondent father woke up and gave him a bottle. Respondent father propped the bottle up with a tee-shirt. He then went back to sleep. He woke up six or seven hours later. He found the baby to be cold and stiff.
Respondent father attempted to revive the baby without success. He then told respondent mother to go to a pay-phone to call 911. She went out but returned without having called 911. Respondent father then went to a pay-phone and called 911. The baby was taken to Woodhull Hospital where he was pronounced dead at 12:45 PM on January 10, 2008.
The petitions also allege that the children were neglected as a result of the failure of respondent mother and respondent maternal grandmother to provide adequate food, clothing and shelter. Specifically, the petitions allege that the children were dirty and not adequately fed and that the home was dirty and infested with roaches and mice. The petitions also allege that garbage bags, dirty dishes and dirty clothing were observed throughout the residence.
Finally, the petitions allege that Melanie and Madelina were derivatively neglected children by virtue of the neglect of James, Jr. On the day the petitions were filed, this Court granted the request of NYCCS for a remand of the two girls.
On August 4, 2008, Alyssa Ebony S. was born to James S., Sr. and Angelica Huertas. On that date, NYCCS filed a derivative petition against respondent father. Alyssa was temporarily released to her non-respondent mother under supervision by NYCCS where she has remained to date.
A fact-finding hearing was conducted over the course of approximately 15 months beginning on February 9, 2009. On April 12, 2010, NYCCS withdrew the petitions against respondent maternal grandmother after she moved to dismiss the petitions for failure to establish a prima facie case.
At fact-finding, NYCCS called three witnesses. The first witness was the caseworker, Shermaine Taylor, who conducted the initial investigation into the allegations of neglect. Ms. Taylor testified that she initially visited the case address at 1738 East New York Avenue, Brooklyn, New York as a result of an Oral Report Transmission (hereinafter, “ORT”) called in by a staff member at the shelter. Ms. Taylor testified that she visited the case address on October 18, 2007, October 24, 2007 and November 2, 2007. She testified that various family members were present when she visited. She indicated, however, that the maternal grandmother was rarely present since she was generally at work. She testified that it was in a deplorable condition, infested with roaches and vermin. She testified that she observed garbage on the floor and dirty clothing everywhere. She testified that although the conditions of the home were improved on October 24, 2007, they subsequently deteriorated. She testified further that James S., Sr. did not live at the case address. She testified that pursuant to shelter rules, he was not even allowed to visit there.
Ms. Taylor also testified that she interviewed respondent mother and respondent father on the day that James, Jr. died. Ms. Taylor testified that respondent father had arrived at respondent mother's residence on the night of January 9, 2008, at about 10:00 PM. Ms. Taylor testified that, after that, the parents spent time together outside the shelter. At approximately 12:30 AM, they picked up the baby and the three of them took the subway to 172 Vernon Avenue using someone else's metro-card. They arrived between 1:00 and 2:00 AM. They entered the building through a window that respondent father broke the prior evening. Ms. Taylor testified that 172 Vernon Avenue was an abandoned building without any heat or electricity. She testified that the parents had slept there on prior occasions. That night, the baby was dressed and wearing a jacket. He was placed in a stroller and wrapped in two comforters. The baby fell asleep in the stroller and the parents went to sleep on a mattress on the floor.
Ms. Taylor testified that respondent father said that the prior night, the baby had been cranky and crying and that he was recovering from a cold. Respondent father told Ms. Taylor that he woke up on the morning of January 10, 2008, at 5:00 or 6:00 AM because the baby was crying. Respondent father said he gave the baby a bottle and that he propped it up with a tee-shirt. Respondent father said that he then went back to sleep. He said that he woke up several hours later and that the baby was blue and making gurgling sounds.
Ms. Taylor testified that respondent mother reported that when she woke up, respondent father was crying and saying that the baby was not responsive. Respondent father told respondent mother to get dressed, go to a pay phone and call 911. She left but returned without having made the call. She said that she had gone to see a friend. Respondent father then went to a corner telephone and called 911. The police arrived with Emergency Medical Services. The baby was taken to Woodhull Hospital where he was pronounced dead.
Natasha Stewart, another NYCCS caseworker, testified about the conditions she observed at the case address. She said that it was in “deplorable condition.” She said that the stove was dirty, dishes were in the sink and clothing was everywhere. She observed mice in the residence.
She testified that when she visited the case address, she observed the baby sleeping in the stroller. She testified that she told respondent mother that the baby should not be allowed to sleep in the stroller. She testified about a number of conversations that she had with respondent mother about the need to ensure that the baby slept in a crib. She repeatedly assisted the mother in removing all of the clothing from the baby's crib. She told respondent mother that the baby would be more comfortable in the crib and that the stroller was not a comfortable place for the baby to sleep. Respondent mother stated that the baby did not like to sleep in the crib. Ms. Stewart testified that she had repeatedly warned the mother that the baby should not be left to sleep in the stroller and that allowing a newborn to sleep in that position was dangerous.
The Medical Examiner, Dr. Julia C. de la Garza–Jordan, M.D., testified and was qualified as an expert in forensic pathology. She testified that the cause of the baby's death was “positional asphyxia” due to soft bedding covering the baby's mouth and she concluded that it was an accident. She testified that these conclusions were based on a reasonable degree of medical certainty. She testified that the baby had been placed in the stroller. She testified that he eventually slid down in the stroller and that, as a result, the “baby's airway was covered by the blanket, and the tee-shirt, and the bottle in the stroller and that's how it ends up being positional asphyxia.” The Medical Examiner testified that James, Jr., like all babies younger than six months of age, did not have the musculature in the neck necessary to lift his head, hold it up and move his body to get air. The Autopsy Report lists the manner of death as “accident (asleep in stroller with clothing over airway).” The Medical Examiner testified that “an accident means that there was absolutely no intent to cause the death.” The Infant Child Death Scene Report listed the ambient room temperature as 60 degrees Fahrenheit and the outside temperature as 55 degrees Fahrenheit.
The Medical Examiner testified that the baby was dirty and had dirty fingernails. She...
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