DECISION A petition was filed by the Administration of Children’s Services (hereafter “ACS” or “petitioner”) on December 17, 2018 alleging neglect of the subject children, Jayce J. and Avianna M., by their mother, Jaquana J. The petitions had initially named Jaquana J. and John M. as respondents, however petitioner withdrew the petitions as to Mr. M. before the fact finding was commenced. The petitions had alleged that the children were neglected due to acts of domestic violence against respondent Ms. J., the children’s mother, by Mr. M., in the presence of the children and that Ms. J. failed to protect the children from being exposed to such acts despite an order of protection that required Mr. M. to stay away from Ms. J. and the children. Petitioner has been represented by Kevin Ruiz, Esq. and respondent mother was represented by Israel Inyama, Esq, (assigned 18b counsel) with Mr. M. being represented by Julie Doyle, Esq. of the Office of Bronx Defenders. The Legal Aid Society by Rebecca Ivry, Esq. was assigned as the attorney for the children. The background of the instant petitions involves a prior petition filed by ACS on 5/10/17 against John M., naming him as a respondent due to alleged acts of domestic violence against Jaquana J. (who at the time was not named as a respondent). The court on the date of filing of that action issued a temporary order of protection against Mr. M. as a full stay away order in favor of Ms. J. and the children. On 9/25/17, although the case had been scheduled for fact finding, the non-respondent mother Ms. J. appeared before the court for the first time and was assigned counsel and submitted to the jurisdiction of the court. The children were released to her under ACS supervision and the temporary order of protection was continued. ACS indicated they intended to call the non-respondent mother as their only witness in support of the petition. The case had been adjourned to 12/19/17 for fact finding but the ACS attorney of record did not appear due to illness and there was no appearance by the non-respondent mother. The case was then adjourned to 3/15/18 but administratively adjourned without the appearance of the parties to 6/7/18. On June 7, 2018, the case again was before the court for fact-finding and the court was advised that although Ms. J. had appeared, she refused to enter the court room, allegedly being fearful of respondent due to a recent incident. The case was then adjourned to 7/17/18 and the fact finding did not go forward because the non-respondent mother had appeared with the children who could not be brought in the court room if Ms. J. would be subjected to lengthy examination. The courthouse nursery was closed which is where the children could have been during the hearing. The case was adjourned yet again to 9/10/18 and on that date Ms. J. denied being served with a judicial subpoena and refused to testify without one. New counsel had to be assigned to represent her since her other counsel had left the assigned counsel panel. Finally, on 12/14/18 the fact finding commenced with ACS calling Ms. J. to testify as their witness in support of the petition. Ms. J. had what might be described as a total memory loss as to her relationship with respondent Mr. M. She could not remember her date of marriage to Mr. M. or making statements to the ACS caseworker as alleged in the petition and denied any acts of violence by respondent Mr. M. Upon her testimony, including cross examination being completed, ACS rested and respondent made a prima facie motion which the court granted in that no evidence was presented in support of the allegations in the petition. On 12/17/18, ACS filed the instant petition against respondents John M. and Jaquana J. When the fact finding was commenced on 4/1/19, ACS withdrew the petition against respondent John M. and proceeded against respondent mother Ms. J. ACS caseworker testified that she received a phone call from respondent mother on 6/4/18 who admitted despite there being an order of protection in place against Mr. M. (full stay away), she had pre-arranged contact with him and an altercation occurred on the street when Mr. M. punched her in the face with the children being present. Respondent mother admitted this was not the first such incident and further admitted she was allowing Mr. M. access to the children. On 5/5/17, respondent mother reported an incident when Mr. M. threw a phone at her, busting her lip with the children being present. The caseworker further testified she had offered respondent domestic violence counseling but respondent refused. On 7/12/19, respondent Ms. J. testified and denied arranging contact with Mr. M. on 6/4/18 or being aware of the full stay away temporary order of protection that was in place at the time. Otherwise, she could not recall the details of her conversation with the caseworker; only that she called the caseworker to let her know what was happening. She did not however offer any explanation as to how she and Mr. M. happened to have been in contact with each other before the altercation occurred. However, Ms. J. did admit to being in court when the full stay away temporary order of support was continued against Mr. M. Respondent Ms. J. requests that the court dismiss the instant petition, stating ACS brought these instant petitions only in retaliation for the failed 2017 action. In the alternative, she asks the court to dismiss these matters stating the aid of the court is not necessary. The court disagrees. It is clear there is a history of domestic violence between Mr. M. and Ms. J. and that such violence has occurred in the presence of the children. In fact, respondent has filed two recent family offense petitions seeking an order of protection on behalf of herself and the children. (Docket O-XXXX/XX filed on 5/7/19 was dismissed for failure to prosecute and Docket O-XXXXX/XX filed on 6/25/19 is currently pending). The petitions allege Mr. M. has threatened Ms. J. with harm, including a threat with the use of a gun. Pursuant to FCA §1012(f)(i)(B), a neglected child is defined as one “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/her parent…to exercise a minimum degree of care…in providing the child with proper supervision or guardianship, by inflicting harm , or a substantial risk thereof”. This court entered an order of protection on 5/10/17 that required John M. to stay away from Jaquana J. and the children Avianna M. and Jayce J. except for ACS arranged visits. That order continued beyond that date and was in place when respondent Ms. J. appeared and submitted to the court’s jurisdiction. Ms. J. with counsel present was aware theat the order was thereafter continued and therefore was in place on 6/4/18. Respondent acknowledged knowing that the full stay away order was in place when she initiated a meeting with Mr. M. and on that date she was assaulted by Mr. M. on the street with the children being present. It is well established that acts of domestic violence may be a basis of a neglect finding due to the children being at risk of physical or emotional harm. See In Re Mohammed J., 121 A.D.3rd 994, 995 N.Y.S.2d 126 (2nd Dept. 2014); In Re Jordan E., 57 A.D.3d 539, 869 N.Y.S.2d 162 (2nd Dept. 2008). Additionally, a neglect finding may be based on a parent’s failure to protect a child from continued exposure to domestic violence. Katherine GG v. Kenneth II, 254 A.D.2d 538, 678 N.Y.S.2d 689 (3rd Dept. 1998). Respondent Ms. J. has shown flawed parental judgment by continuing to have contact with Mr. M. with the children being present knowing of his assaultive behavior and thus knowingly exposing the children to violence with a risk of physical and/or emotional harm. Therefore, this court enters a finding of neglect against respondent Ms. J. due to her inadequate supervision and guardianship by allowing the children to be exposed to domestic violence despite an order of protection that was in place to protect the children from further exposure to such. Dated: July 29, 2019 Bronx, NY.
