TC, Matter of

• Citation: 128 Misc.2d 156,488 N.Y.S.2d 604
• Parties: In the Matter of "TC" A Child under Eighteen Years Alleged to be Neglected. MARGUERITA C. a/k/a, Mother, and James C., Father, Respondents.
• Decision Date: 18 April 1985
• Court: New York Family Court

Page 604

488 N.Y.S.2d 604

128 Misc.2d 156

In the Matter of "TC" A Child under Eighteen Years Alleged

to be Neglected. MARGUERITA C. a/k/a, Mother, and

James C., Father, Respondents.

Family Court, City of New York,

New York County.

April 18, 1985.

Frederick A.O. Schwarz, Jr., Corp. Counsel by Frances Silverglade, Asst. Corp. Counsel, New York City, for petitioner.

Sherry Glazer, Brooklyn, for respondent.

Lenore Gittis, Legal Aid Society by Nanette Kripke, New York City, Law Guardians.

DECISION AND ORDER

BRUCE M. KAPLAN, Judge:

The public was made painfully aware of the horrors of child abuse by the extensive coverage of the brutal slaying of Roxanne Felumero at the hands of her demented father. This senseless act also led to the enactment of the Child Abuse provisions of Article 10 of the Family Court Act (Laws of 1969, Ch. 264).

Since that time there have been ongoing attempts to heighten society's consciousness of the evils and extent of child abuse. Most recently a series of highly publicized reports and investigations focused attention on the operation of the Bureau of Special Services for Children (SSC) of the New York City Department of Social Services. This entity is the child protective agency mandated by the Social Services Law to be established within the City of New York.

The unfavorable publicity heaped on SSC exacerbated its natural predilection to error on the side of caution with respect to filing child protective proceedings. Indeed the instant petition may well have been brought as part of SSC's reaction to its decidedly undesired notoriety and must be viewed in that light. While zeal and diligence in the fulfillment of SSC's mandate to protect children should be commended, excesses in this regard must be curbed.

This decision on Respondent-father's motion to dismiss will attempt to provide SSC with guidance in this area. Hopefully it will focus on real episodes of abuse and neglect, instead of pleading and attempting to prove conduct which falls outside of any reasonable reading of the definition of neglect contained in Family Court Act § 1012(f).

Paragraph 5 of the petition contains 13 subparagraphs which purport to provide discrete grounds of neglect. Subparagraph 3 was withdrawn.

Paragraphs 1, 6 and 9, 10, 11 and 12, when read together, posit legitimate causes of action against both Respondents. Although couched mainly in terms of past history, they sufficiently implicate the present inability of either parent to care for the child when viewed in the light most favorable to Petitioner.

Since the enactment of Art. 10, the Courts have had numerous opportunities to construe its provisions and a substantial body of decisional law has established criteria for the adequacy of allegations. The remaining paragraphs i.e., 2, 4, 5, 7, 8 and 13 fail to meet these criteria and must be stricken.

The salient characteristic of a proper allegation of abuse or neglect is that it refer to present, near contemporaneous or ongoing conduct. Allegations may not be stale. They must refer to continuing conduct or behavior patterns.

This is particularly important where the gravamen of an allegation of neglect of one child is the abuse or neglect of another per FCA § 1046(a)(i). The present petition contains SSC's misapplication of the aforementioned provision and will be discussed below.

The case of Christina Maria C., 89 A.D.2d 855, 453 N.Y.S.2d 33 (2d Dept.1982), illustrates this point. The Appellate Division reversed the dismissal of an abuse proceeding and made a neglect finding. It held that it was error not to find that Christina was in imminent danger of having her physical, mental, or emotional health impaired. Although there was no proof of her mistreatment, her brother, during this same time period, had clumps of hair torn from his scalp, burns on his back, and rope burns on his wrists and ankles. This constituted proof of imminent danger to her.

Similarly, in Terry S., 55 A.D.2d 689, 389 N.Y.S.2d 55 (3rd Dept.1976) the Court affirmed a neglect finding after a petition was amended to add allegations of neglect of a child with whom the Respondent was pregnant when her home lacked heat, electricity and proper sanitary conditions.

In Daniel C., 47 A.D.2d 160, 365 N.Y.S.2d 535 (1st Dept.1975), conversely, the Appellate Division overturned a neglect finding predicated on hospital records which were several years old. It noted that the children had not been in Respondent's home for more than 2 years subsequent to the neglect finding. It held that it was error to bottom a finding of neglect on past deficiencies alone.

Similar reasoning was employed by Judge Leddy in Maureen G., 103 Misc.2d 109, 426 N.Y.S.2d 384 (Fam.Ct.Richmond Co.1980). He noted proof of abuse or neglect must be so proximate in time to the date of the current proceedings that it can reasonably be concluded that the condition is a current one that still exists. The evidence must not be stale.

Other decisions reflect the validity of this view, Matter of Diana M., 104 Misc.2d 766, 429 N.Y.S.2d 144 (Fam.Ct.Suffolk Co.1980); Matter of Sais, 94 Misc.2d 40, 404 N.Y.S.2d 507 (Fam.Ct.Suffolk Co.1978); Matter of Lambert, 119 Misc.2d 326, 462 N.Y.S.2d 791 (Fam.Ct.Suffolk Co.1983); Matter of Jason B., 117 Misc.2d 480, 458 N.Y.S.2d 180 (Fam.Ct.Richmond Co.1983); Matter of Theresa C., 121 Misc.2d 15, 467 N.Y.S.2d 148 (Fam.Ct.Monroe Co.1983); Kristina Lynn J., 72 Misc.2d 683, 340 N.Y.S.2d 306 (Fam.Ct.Richmond Co.1972).

Subparagraph 2 merely recites that a previous neglect finding against the Respondent-mother on December 2, 1981 resulted in a placement with the Petitioner. It expired on June 2, 1983 because no attempt was made to extend that placement. While the allegation refers specifically to the Respondent-mother, and this motion to dismiss has been brought by the Respondent-father, the court will strike this subparagraph from the petition. This subparagraph alleges no new neglect. Rather, it is an improvident attempt to obtain a nunc pro tunc extension of placement.

Under controlling law one may not attempt to extend placement nunc pro tunc. Instead, the Petitioner must plead and prove new neglect against the Respondent parent when it has failed to apply for an extension of placement. Matter of Susan F., 59 A.D.2d 783, 398 N.Y.S.2d 903 (2d Dept.1977); Lyndell C.R., 102 Misc.2d 723, 423 N.Y.S.2d 1007 (Fam.Ct.New York Co.1980).

Petitioner somewhat disingenuously seeks to justify subparagraph 2 by quoting Family Court Act § 1013. This reference is specious. Family Court Act § 1013 provides that a child need not be currently in the care or custody of the Respondent if the court otherwise has jurisdiction over the matter. This means no more than that a child who is not living with a Respondent may be the subject of a child protective proceeding when the time frame of living away from the Respondent is reasonably contemporaneous with the neglect charged in the current petition. It is inapplicable to the instant case when the conduct referred to occurred three years ago.

The purpose of Family Court Act § 1013(d) is to enable the Court to obtain jurisdiction over a frequent visitor to the child's home, to protect an infant born subsequent to the original finding of neglect, or to deal with a situation where the parents have temporarily placed the child with a friend or relative. See Matter of "J" Children, 57 A.D.2d 568, 393 N.Y.S.2d 449 (1977); Matter of Maureen G., supra, 103 Misc.2d 109, 426 N.Y.S.2d 384 (Fam.Ct., Richmond Co., 1980). Practice Commentary by Douglas J. Besharov, McKinney's Consolidated Laws of New York, Book 29A, Family Court Act § 1013.

A widely recognized component of the "child abuse syndrome" is the existence of a "target child." The malevolent energies, or acts of omission of the abusive or neglectful parent are focused on the target child while the parent continues to interact with the other child or children in an unobjectionable manner. When the target child is removed, the objectionable conduct is often directed against the child or children who remain in the home. Helfner & Kempe, The Battered Child (Univ. of Chicago 1968); Matter of Kenya G., 74 Misc.2d 606, 344 N.Y.S.2d 422 (Fam.Ct., N.Y.Co.1973).

Were it not for FCA § 1046(a)(i), proof of abuse or neglect of one child would be subject to objection on the grounds of relevancy when it was introduced with respect to another child. This provision represents a determination by the Legislature that abrogating the traditional common law rule respecting relevancy enhances the effectiveness of the child protective article.

This provision vitiates the relevancy objection which is based on testimony respecting another child. It does not, as SSC would have us believe, transmogrify allegations which are irrelevant because they are stale or fail to address themselves to conduct interdicted by FCA...