DECISION AFTER TRIAL Suffolk County Child Protective Services (CPS) filed petitions on October 11, 2017, alleging respondent mother H.M., neglected the children A.M. (d.o.b. 2015), G. M. (d.o.b. 2012) and W.W. III, (d.o.b. 2004), by failing to provide adequate supervision for the subject children during certain dates in July and September of 2017, thereby placing the children at risk of physical, mental or emotional harm.G.B., a caseworker for Child Protective Services testified that, in response to a State Central Registry report alleging that respondent left her three children unsupervised, he met with respondent mother and her three children in respondent’s home in Ridge, New York on July 18, 2016. The caseworker indicated that he spoke with the children and found the home to be safe and appropriate. Respondent mother admitted that the child W.W. III, had a low I.Q. and cognitive issues and was incapable of taking care of himself or the other children. Respondent mother denied leaving the children unsupervised. Respondent mother told the caseworker that she works Monday through Friday during the days and claimed that she left A.M. and G.M. with their father, S.M., and then picked up her mother to watch the child W.W. III at respondent’s home.The caseworker described the child W.W III as “shy”, “quiet” and “friendly” and said the child knew his father’s cell phone number but not his mother’s. The caseworker indicated she was unable to engage the child G.M. The caseworker also called both S.M. (A.M.’s and G.M.’s father) and W.W. Sr. (the child W.W’s father). The caseworker indicated he kept in contact with respondent mother and visited her home again on September 9, 2016, and no court intervention was sought.A.H., another CPS caseworker testified that in response to a State Central Registry report made on July 17, 2017, she met with respondent mother and the subject children on July 20, 2017, at their home. The State Central Registry Report indicated that on July 17, 2017, the respondent mother dropped two-and-a-half-year-old A.M. with the babysitter and left before insuring the babysitter was present in the home and awake. The report further indicated that the babysitter was unaware that A.M. was going to be dropped off that day and was asleep when the child arrived and that A.M. left the babysitter’s home and was wandering outside alone and unsupervised. [Petitioner's Exhibit "1", Office of Children and Family Services Child Protective Services Intake Report].Upon visiting respondent mother at her home, the caseworker observed clothes all over the stairs and disorder but no visible hazards. The two younger children, A.M. and G.M. were home and appeared unkempt but “good”. In response to the allegations contained in the State Central Registry report, respondent mother told the caseworker that she leaves the children “quickly” at the babysitter’s house because they cry, and saw someone appropriate in the house before she left, but did not speak to anyone. Respondent mother also added that she arranged to get a family member from out of state to watch the children and that she would no longer be using this babysitter. No emergency application for court intervention was sought with regard to this incident.The caseworker further testified she visited respondent mother’s home again on September 21, 2017, in response to a Court Order directing an investigation [Petitioner's Exhibit "2", Order for Investigation, J.F.C. Bergmann, 9/19/17]. After the caseworker knocked on the door, the child W.W., III called out from inside that “no one is home” and “come back another day”. The child would not open the door. The caseworker was unable to ascertain the safety of the children and attempted to call the mother but there was no answer. The paternal grandmother of A.M. and G.M. was called and she went to the house and convinced the children, all three of whom were inside the house, to open the door. The police were also called and an officer came to the house as well. The child W.W. III, spoke to the caseworker who indicated the child answered her questions and understood what she was saying. The caseworker did not observe any physical issues or problems with the children. The paternal grandmother took the children to her home and was instructed to have respondent call the caseworker when she returned home.Subsequently, on October 4, 2017, the caseworker spoke with respondent mother and Mr. W.W., Sr. (W.W. III’s father). Respondent mother reported to the caseworker that on September 21, 2017, W.W. Sr. was at the home in the parking lot the entire time but did not want to get involved.Police Officer W.J. testified that on 7/17/17, he was on duty at the seventh precinct when a call came in from a woman who reported an unfamiliar small child on her front porch without shoes. The Officer responded to the call at 6:15 a.m., to find a child in pajamas with no shoes and without a guardian or caretaker. The Officer knocked on doors to try to locate the parents or someone who knew the child. The Officer stated that the child was old enough to walk, but not to talk. The Officer did not observe any scrapes, burns or other physical problems with the child and indicated that other officers were called in and the babysitter’s home was located.S.M., father of the two younger children A.M. and G.M., testified that in September of 2017, he observed his son A.M. with a mark on his nose. Mr. M. stated that when he asked his children what happened, his daughter G.M. told him that the child W.W. III, pushed A.M.’s head into a bag of popcorn because W.W.III got upset with A.M. The County submitted a photograph of the child A.M. from September of 2017, pictured with an area of dark discoloration on the tip of his nose [Petitioner's Exhibit "3"]. The County also submitted a photograph depicting the child A.M.’s hand, with what appears to be blisters on the tips of several fingers [Petitioner's Exhibit "4"]. Mr. M. stated that the child G.M. also told him that the child W.W. III, hits her and A.M. and when the children are left with W.W. III’s father, W.W.III’s father will leave them alone with the child W.W, III. Mr. M. indicated that he is concerned for the safety of the children while in the care of respondent.The respondent mother did not present evidence, testify or call witnesses.After careful consideration of the evidence presented, the Court finds the County has sustained its burden by a preponderance of the evidence that the respondent mother has neglected the subject children by failing to provide adequate supervision for the subject children A.M., G.M. and W.W., III, within the meaning of §FCA 1012, thereby placing them at risk of harm.In order to establish a neglect against a parent, the County must prove by the preponderance of the evidence that the children’s physical, mental or emotional health has been impaired or is in imminent danger of becoming impaired because of the parent’s failure to exercise a minimum degree of care in providing the children with proper supervision or guardianship… or by any other acts of a similarly serious nature requiring the aid of the court (FCA §1012(f)(i)(B)FCA §1012(f)(i)(B); In the Matter of Keira O., 44 A.D.3d 668, 670, 844 N.Y.S.2d 344, 345 [2d Dept. 2007]; In the Matter of Andrew S., 43 A.D.3d 1170,1170-1171 842 N.Y.S.2d 579, 580 [2d Dept. 2007]).Police Officer W.J. testified that he responded to a call that came into the precinct at approximately 6:00 a.m. on July 17, 2017, from a woman who reported an unfamiliar young child on her doorstep without shoes. Upon arriving at the location, Officer J. found the child who was later identified as two-and-a-half-year-old A.M., in pajamas without shoes and without a caretaker or guardian. Officer J. indicated the child was able to walk but unable to talk, and he proceeded to knock on doors in the neighborhood to try to locate the caretaker of the child. The home of the alleged caretaker was located by another Officer. Several days later, CPS caseworker A.H. interviewed the respondent mother about the incident. The mother told the caseworker that when she drops the children at the babysitter’s, she leaves “quickly” because they cry and claimed that she saw someone “appropriate” in the house before she left, but did not speak to anyone.The Court finds that under these circumstances, the mother failed to exercise a minimum degree of care in providing her children with proper supervision when she dropped the children off at the babysitter and left “quickly”, before insuring they were properly supervised. While respondent mother claimed that she saw an “appropriate” person in the house, she admitted that she did not speak to anyone. Based upon the limited information the mother relayed to the caseworker involving the incident, the Court finds it reasonable to conclude that the mother dropped the children off “quickly”, without insuring there was someone there to properly supervise the children. The mother indicated she saw an “appropriate” person, but did not identify the individual or indicate whether she (the mother) got out of the car to walk the children inside the house. The respondent mother did not testify or otherwise present evidence contradicting this conclusion. “The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits.” In the Matter of Michael U.,110 A.D.3d 821, 823 (2d Dept. 2013) citing Matter of Commissioner of Social Services v. Phillip De G., 59 N.Y.2d 137 (1983).The Court need not draw the strongest inference against respondent mother, but a reasonable one, to find the mother failed to exercise a minimum degree of care in insuring the children were properly supervised. The Court assumes had the mother gotten out of the car to walk the children into the house, she would have spoken to someone. The Court also assumes that if she had seen an “appropriate” person in the home, she would have provided the caseworker with his/her name. The Court does not find the mother’s limited and vague account of the events to provide a credible scenario of the incident which resulted in her two-and-a-halfyear-old child alone on a stranger’s doorstep in pajamas without shoes in the early hour of the morning. Furthermore, the Court found the testimony of both the police officer and the caseworker to be credible and unrefuted.The mother’s failure to provide the subject children with proper supervision on July 17, 2017 was not a singular event. On September 21, 2017, in response to a Court Ordered Investigation [Petitioner's Exhibit "2", Order for Investigation, J.F.C. Bergmann, 9/19/17], CPS caseworker A.H. visited respondent’s home to find the three children in the house unsupervised. While twelve-year-old W.W. was with four-year-old G.M. and two-year-old A.M. inside the home, respondent mother had previously admitted to CPS caseworker G.B. in 2016, that the child W.W. was incapable of taking care of himself or the other children due to certain cognitive issues. There was no evidence that the child W.W. was any more capable of watching himself or the other children at the time of the incident in September of 2017. When respondent mother was questioned by the caseworker about this incident, she once again gave the caseworker a vague and limited explanation. Once again, the Court need not take the strongest adverse inference against respondent mother, but a reasonable one, to find that respondent mother failed exercise a minimum degree of care in insuring the children were provided with adequate supervision. It defies logic that a caretaker (Mr. W.W., Sr.) would watch from a parking lot while CPS and a police officer were outside the home of the children (with the children inside) without making his presence known. The Court further notes that the mother’s response, merely that W.W., Sr., was in the parking lot at the time, does not address the issue as to who was watching the children or whether respondent mother left the children in Mr. W.’s care. The fact that the mother did not tell the caseworker that she left Mr. W. to watch the children in her absence, leaves the Court to reasonably infer that the mother again failed to insure the children were provided adequate supervision.Other evidence of lack of supervision was proferred by the County which included photographs of the child A.M. with a black mark on the tip of his nose and what appeared to be blisters on several finger tips of one hand. [Petitioner's Exhibit "3" & "4"] Mr. M. testified that his daughter G.M. told him that the mark on the child A.M.’s nose was caused by the child W.W. pushing A.M.’s head into a bag of popcorn because he was annoyed. G.M. also told her father that sometimes Mr. W., Sr., leaves the children alone with the child W.W. III. While the Court lacks sufficient evidence to determine whether A.M’s injuries resulted from respondent mother’s negligence, the “popcorn incident”, provides further proof that the child W.W. III, is incapable of properly supervising his younger siblings.The Court finds, in accordance with the decision herein, that respondent mother neglected her three children, W.W. III, G.M. and A.M., by her failure to exercise a minimum degree of care in providing them with adequate supervision thereby placing them at risk of physical, mental or emotional harm.Accordingly, based on the Court’s finding of neglect, all parties and counsel are directed to appear in Court on _________for the purpose of scheduling a dispositional hearing.This constitutes the decision of the Court.Date: January 17, 2019Pursuant to section 1113 of the Family Court Act, “an appeal must be taken within 30 days of receipt of the order by appellant in Court, 35 days from the mailing of the order to the appellant by the clerk of the Court, or 35 days after service by a party or law guardian upon the appellant, whichever is earliest.”
