Maureen G., Matter of

• Decision Date: 16 November 1977
• Citation: 103 Misc.2d 109,426 N.Y.S.2d 384
• Parties: In the Matter of MAUREEN G. born
• Court: New York Family Court

Page 384

426 N.Y.S.2d 384

103 Misc.2d 109

In the Matter of MAUREEN G. born 11/16/77 A Child under Eighteen Years of Age Alleged to be Abused by Michael G. and Maureen G., Respondents Family Court, Richmond County.

Feb. 7, 1980.

Allen G. Schwartz, Corp. Counsel, New York City by Jeffrey S. Pomerantz, New York City, for Comm. of Social Services

Charles Schinitsky, Legal Aid Society, Brooklyn by Rhoda J. Cohen, Staten Island, Law Guardian for Child.

Stanley Applebaum, Staten Island, for respondent Mother.

Jerome S. Birch, Staten Island, for respondent Father.

DECISION AND ORDER

DANIEL D. LEDDY, Jr., Judge.

On November 13, 1979, the Commissioner of Social Services filed the instant petition seeking to have the subject child adjudged abused by her parents, Michael and Maureen G., respondents herein. The petition alleges:

"On October 21, 1979, the Respondents' child, David G., born August 11, 1979, was dead on arrival at St. Vincent's Medical Center. According to the Medical Examiner, the cause of death was malnutrition . . .

"As a result of the above, child Maureen is also abused and in imminent danger of becoming abused . . ."

The Court has found by a fair preponderance of the credible evidence that respondent mother was the primary caretaker of the deceased child, David G., aged two and one-half months at death, and of the subject child, Maureen G., aged two (2) years, during the period relevant to the instant petition. The Court has also found that David G. died of severe malnutrition and dehydration, and that he had no predisposition to either condition, both of which were caused solely by gross negligence in this child's care and feeding.

The Court therefore finds that the deceased child, David G. was abused within the meaning of section 1012(e)(ii) of the Family Court Act in that the mother allowed to be created a substantial risk of physical injury to him, by other than accidental means, which was likely to and did, in fact, cause his death.

Based on this finding of abuse as to David G., the Court concludes that the subject child, Maureen G., is neglected in that her physical condition is in imminent danger of becoming impaired as a result of the failure of the respondent-mother to exercise a minimum degree of care in providing the child with proper supervision and guardianship.

In making this finding of neglect with regard to the child, Maureen G., the Court's decision is governed by F.C.A. Sec. 1046(a)(i). The conduct leading to a finding of abuse as to David G. is so proximate in time to the date of these proceedings that it could be reasonably concluded that the condition giving rise to such conduct, being current, still exists. Thus, the mischief which cases, e. g., Matter of Daniel C., 47 A.D.2d 160, 365 N.Y.S.2d 535 (1st Dept. 1975) and Matter of Lynn J., 72 Misc.2d 683, 340 N.Y.S.2d 306 (Richmond Co. Family Ct.1972), would prevent, is avoided herein. As in the Matter of Anthony, 81 Misc.2d 342, 344, 366 N.Y.S.2d 333, 335 (N.Y. Co. Family Ct.1975), this Court is not dealing with stale evidence. The proof offered as to the abuse of David G. is probative as to whether at the time of the hearing the subject child was suffering, or was likely to suffer, from abuse or neglect. (Matter of Daniel D., supra; Matter of Vulon, 56 Misc.2d 19, 288 N.Y.S.2d 203 (Bx. Co. Family Ct.1968)); see also, Matter of Terry S., 55 A.D.2d 689, 690, 389 N.Y.S.2d 55, 57 (3rd Dept. 1976).

Moreover, at the fact-finding hearing, respondent mother testified that she believed she had acted properly in all respects regarding David. It is significant, therefore, that this mother's ignorance of her deficiencies in dealing with David persists. Thus her continuing inability to grasp the realities of raising children creates an imminent threat to the subject child, which requires court intervention.

Nevertheless, the Court does not find that Maureen G. is abused by respondent mother, but, rather, neglected. It is aware of respondent's evidence that Maureen is a well fed, healthy, happy child, who is devoted to her mother and vice versa. Respondent mother's negligent parenting as to David has not visibly affected Maureen, and due to her age is less likely to have the life-threatening potential it had for her infant brother. And yet, there exists proof of danger to Maureen of future harm due to a lack of parental capacity on the part of her primary caretaker. It is this risk of harm which causes Maureen G. to be neglected.

The Court now turns to the case of the respondent father.

At the close of all the evidence herein, respondent father moved to dismiss the petition against him in that he was not the custodian of the deceased nor surviving, child, did not live in the household with them, and was not responsible for their care, as defined in F.C.A. Sec. 1012. Moreover, he contends that he committed no acts of abuse or neglect toward his children.

In disposing of the first branch of respondent father's motion to dismiss, the Court refers to the language of the controlling statute.

"When used in this article (F.C.A. Art. 10) and unless the specific context indicates otherwise:

(a) 'Respondent' includes any parent or other person legally responsible for a child's care who is alleged to have abused or neglected such child . . .

(e) 'Abused child' means a child less than eighteen years of age whose parent or other person legally responsible for his care (has abused said child) . . .

(f) 'Neglected child' means a child less than eighteen years of age

(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care . . ..

(g) 'Person legally responsible' includes the child's custodian, guardian, any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child. " (F.C.A. Sec. 1012.) (Emphasis added.)

Respondent father would have the Court construe this language to require that in order for a parent to be subject to an abuse or neglect finding in an Article 10 proceeding he must be a "person legally responsible" for the subject child, as that term is defined in F.C.A. Sec. 1012(g) (supra ). He would have this Court follow the reading of this statute, as enunciated in Matter of Karr, 66 Misc.2d 912, 323 N.Y.S.2d 122 (Richmond Co. Family Court 1971). There it was held that:

"It is axiomatic in the law of neglect that the parent sought to be charged with neglect must have custody, care and control of the child during the period when neglect charges are alleged against the parent." (Id. p. 914, 323 N.Y.S.2d p. 124.)

This Court, however, refuses to follow Karr's understanding of the statute, finding that such an understanding resulted from a failure to recognize and implement the statute's legislative purpose and intent, and from a misapplication of the rules of statutory construction.

The purpose clause of F.C.A. Art. 10 states that it ". . . is designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being . . . (and) is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met." (F.C.A. Sec. 1011). The primary purpose of Article 10 proceedings, therefore, is to protect children from abuse and neglect. (People v. Kenyon, 46 A.D.2d 409, 412, 362 N.Y.S.2d 644, 647 (4th Dept. 1975).) These proceedings are civil in nature (Matter of Diane B., 96 Misc.2d 798, 800, 409 N.Y.S.2d 648, 649 (Monroe Co. Family Ct.1978)), and are to be clearly distinguished in purpose and intent from criminal actions. They are not designed to punish offenders for acts against their victims, but to protect their victims from further harm. And, more precisely, they are not designed to protect them merely as victims, but as victimized children. The focus of the article is on children as members of a family, as that term is now broadly defined, and their protection from harm caused by persons whose responsibility for said children is based on some de jure or de facto parental relationship with them. (People v. Webb, 52 A.D.2d 8, 10, 382 N.Y.S.2d 369, 371 (3rd Dept. 1976).)

"The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature." (McKinney's Statutes Sec. 92). In general, statutes are not to be so narrowly construed as to thwart legislative design. (Verona Cent. Cheese Co. v. Murtaugh, 50 N.Y. 314, 317; People v. Dennis, 206 Misc. 402, 403, 133 N.Y.S.2d 586, 587.) "Whatever is within the spirit although not within the letter, is within the statute and what is within the letter and not within the spirit is not within the statute." (Standard Acc. Ins. Co. v. Newman, 2 Misc.2d 348, 359, 47 N.Y.S.2d 804, 814, aff'd. 268 App.Div. 967, 51 N.Y.S.2d 767, app. den. 268 App.Div. 1039, 52 N.Y.S.2d 948, as quoted in People v. Schuster, 83 Misc.2d 871, 879, 374 N.Y.S.2d 951, 959 (Bronx Co. Criminal Ct.1975.))

F.C.A. Sec. 1012(a) must therefore be interpreted to include within the definition of "respondent" any person whose relationship to the subject child is parental in nature, whether by law or fact, and who is alleged to have committed acts of abuse or neglect against said child. The words "parent or other person legally responsible", which appear in subdivisions (a); (e), and (f)(i) of 1012 must be read to mean a parent or one acting in loco parentis. (See, Matter of Children, 76 Misc.2d 987, 989, 352 N.Y.S.2d 570, 573 (Westchester Co. Ct.1974); Matter of Yvette R., 61...