By petition dated June 27, 2017, ACS charges respondent-father Justino R., Jr., with neglect of his two children, Justino R. III (age 11 at the time) and Justelle R. (14). The children’s mother, Louise R., was initially charged as well, but the petition against her was dismissed without prejudice by Judge Barnett on June 11, 2018. The undersigned conducted a fact-finding hearing as to the charges against Mr. R. on June 11 and 12, 2018. The record consisted of the testimony of the children’s grandfather, Justino R., Sr., and their father, Mr. R., Jr., and CPS Charles Davis. For the following reasons, the Court finds that petitioner has failed to prove the allegations in the petition by a preponderance of the evidence, and dismisses the matter. The gravamen of the petition is that Mr. R., Jr., left the children with Mr. R., Sr., without an agreement or a plan for their support, and failed to support them or plan for their return to his physical care. The basic family history and timeframes are not in dispute, but the two men gave differing accounts about what happened when Mr. R., Jr., moved out of his father’s home in April 2016, leaving the children behind. Both father and grandfather indicated that they are not on speaking terms (at least, they do not have meaningful, ongoing communication), and each alluded to reasons having nothing to do with the children as being the driver of this rift. This background is important to understanding and evaluating each man’s testimony. It appears that both gentlemen are hurt by things the other has said and done over the years, and both are deeply disappointed in the other. After carefully listening to the testimony and observing the witnesses, the Court credits the testimony of Mr. R., Jr., over his father’s where there were discrepancies. The testimony of Mr. Davis tends to corroborated the account of Mr. R., Jr.Mr. R., Jr., had been living with his father for some time when, in May 2015, he brought his children back from abroad — where they had been living with another adult caretaker — to reside with them. His plan was to save money and get an apartment of his own large enough for him and the children. Evidently, Mr. R., Jr., did not make fast enough progress on this goal to satisfy his father. Mr. R., Sr., also did not appreciate that his son had a new girlfriend who would come by with her own children. The tension between father and son increased during this time period, to the point where, around April 2016, Mr. R., Sr., told his son to leave within 30 days. The Court finds that at that point, Mr. R., Sr., indicated, either explicitly or by implication, that the children could remain with him if his son was not able to secure appropriate housing for them; regardless, though, his son would have to leave.Mr. R., Jr., ended up moving in with a friend downstairs in the same building. Mr. R. Sr. insisted that the apartment was a three-bedroom and would have been large enough for the children, but he never actually saw the premises and the Court credits Mr. R., Jr., who said that the friend’s unit was not adequate for the children. However, the children saw their father regularly, visiting him at will, as he was residing in the same building. They had a key to his apartment and would come over for meals. They continued attending their same schools and carrying on with life as normal, just with their father living downstairs instead of in their cramped quarters with their grandfather. Oddly, Mr. R., Sr., claimed to be unaware that his son was right downstairs. To be sure, Mr. R., Jr., did not specify where he had moved to; the men were not on speaking terms. But the children were visiting their father in the same apartment building regularly, and it defies common sense to think that they did not mention to their grandfather where their father was. In any event, in October 2016, Mr. R., Jr., moved out of the building and into the home of his paternal grandmother — the mother of Mr. R., Sr., just a few blocks away. Mr. R., Sr., could not have been unaware of that information as well. Mr. R., Jr., explained that he could not afford a two- or three-bedroom apartment on his own; he was satisfied to leave the children with his father while he lived with his grandmother.This case came to ACS’s attention when Justelle’s school called the state central registry for child maltreatment, alleging that Mr. R., Sr., inflicted excessive corporal punishment on her. ACS investigated and determined that the allegation was unfounded. Both children were well cared for by their grandfather. They had disagreements and conflict, but their basic needs were met and there was no indication of maltreatment. There was one incident in which Justelle stayed out late and was brought home by a stranger; the child seemed intoxicated on alcohol or drugs and her grandfather brought her to the emergency room. He called his son, but Mr. R., Jr., did not come to the hospital; instead, he visited Justelle at home the next day. There was no evidence that Mr. R., Sr., had been unable to get Justelle necessary medical care either that night or at any other time. Nor was there any evidence that he had tried and been able to get necessary care for Justino III. He claims he was not made aware of any parent-teacher conferences, but Mr. R., Jr., testified credibly that he (Mr. R., Jr.) had notice of them and, as the parent, attended. While Mr. R., Jr., may have given the children some money from time to time, it is essentially undisputed that he did not provide regular child support according to his means or the children’s needs.However, Mr. R., Sr., seemed content enough to manage the situation the way it was. While he surely wanted his son to step up and would have preferred not to be providing daily care and support to his grandchildren, the reality is that he did not take any steps that were available to him to force the issue with his son. He never filed for custody of the children, even though based on his version of events he could have alleged that he had standing to do so under Bennett v. Jeffreys, 40 NY2d 543 (1976). He never sued for child support, even though he would have had a statutory right to do so. See Family Court Act §422(a). He never called ACS or the state central registry for child maltreatment to allege that his son had abandoned or otherwise neglected the children. If he truly felt that his son had broken some agreement they had for Mr. R., Jr., to take the children with him when he left the home, or if Mr. R., Sr., was truly unable to provide for the children’s basic shelter, clothing, food, medical, and educational needs, he could have taken steps to help them. That he did not do so is powerful evidence that their father, as distasteful as his actions may have been, did not neglect them within the meaning of the law.Though the Court credits the testimony of Mr. R., Jr., over his father’s, it is important to note that even if the story offered by Mr. R., Sr., were true, there is still insufficient evidence to support a finding of neglect by Mr. R., Jr. That is because even if Mr. R., Jr.’s actions fell below the minimum level of acceptable parenting, they did not result in harm to the children. As noted above, the children were well cared for by their grandfather. Though he did not receive financial support directly from Mr. R., Jr., he did not testify as to any struggles that he had to provide for the children on his own. There was not one statement as to scrimping on food, or inability to buy school supplies or clothing, or anything similar. There was no testimony that the children needed access to care or services that they were unable to get because Mr. R., Sr., lacked legal authority to consent. In terms of the actual harm done to the children here, petitioner points only to the emotional damage to the children from being constantly disappointed in their father.1 That is insufficient for a finding of neglect.Of course, the statute defines neglect to include either actual harm or “imminent danger” of harm. See Family Court Act §1012(f). When assessing the imminence of the danger, courts must determine if the risk is “near or impending, not merely possible.” Nicholson v. Scoppetta, 3 NY3d 357, 369 (2004). Petitioner here argues that there was imminent danger to the children because their grandfather, being under no obligation to care for the children, could have stopped doing so at any time. There is simply no evidence that a decision to do so was “near or impending.” To the contrary, after this case was filed, the court released the children to Mr. R., Sr.’s direct temporary care under Family Court Act §1017, a legal status that comes without any foster care subsidy. As frustrated as he was with his son, he was never even close to giving up on caring for the children.2Across this jurisdiction — indeed, across the Nation — many children are raised by their grandparents outside the foster care system. Sometimes there is a meeting of the minds between the parent and grandparent about the situation. Sometimes, however, there is not; the grandparent steps in to do the right and necessary thing for a grandchild because there is no other choice. Sometimes adult children take advantage of their parents’ open hearts and goodwill, knowing that their own children will be okay with the grandparents. Such behavior may be wrong in the moral sense, and it may even fall below the minimum standards of parenting under the law. However, if the children are not harmed as a result and not in imminent danger of harm, it is not neglect as defined by law.3The Court has considered the case law and other arguments offered by petitioner and the attorney for the children and finds them unpersuasive.THEREFORE IT IS HEREBY ORDERED THAT:1) The petition against Mr. R., Jr., is dismissed with prejudice.2) The permanency hearing currently scheduled for July 3, 2018, before Judge Barnett is hereby vacated as moot. Matter of Jaime J., 30 NY3d 275 (2017).3) Given that the children have been removed from their father’s legal care for over a year, enforcement of paragraph 1 of this order is stayed until July 10, 2018, at 5pm. In the event an order further staying enforcement is issued by the Appellate Division, the parties are directed to confer with the Part 4 court attorney for guidance as to further action that should occur in Family Court pending the merits appeal.Dated: July 2, 2018ENTER
