PLEASE TAKE NOTICE PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT WHICHEVER IS EARLIEST. DECISION & ORDER AFTER FACT-FINDING On July 15, 2019, the New York City Administration for Children’s Services (“ACS”) filed the instant child protective petitions alleging that the respondent mother, Kimberly S, failed to provide the subject children with proper supervision or guardianship, in that she left the subject child Jake, 10, home alone with the subject children Lucas and James (hereinafter “twins”), 1, thereby placing them at risk of harm. The subject children were remanded to ACS following a hearing held pursuant to Family Court Act §1027 on July 19, 2019.1 ACS subsequently filed a notice to conform the pleadings to the proof on February 20, 2020, pursuant to Family Court Act §1051[b], to include an additional allegation that Ms. S failed to provide proper supervision and guardianship to the subject children. The allegation was that during an extended unsupervised overnight visit that occurred from December 23, 2019 through January 2, 2020, the subject child Ava, 2, sustained a burn to her leg. After Ava sustained the burn, the respondent mother failed to obtain medical care. ACS further alleged that according to Dr. Simkins, the mother provided “inconsistent explanations of how the injury occurred,” and that when asked by ACS staff, the subject child Ava responded “…burn my leg on the stove.” and then “mommy burned my butt on the stove.” Finally, ACS alleged that because of these incidents, the remaining children were derivatively neglected. The fact-finding hearing commenced on December 13, 2019, and concluded on May 5, 2021.2 At the conclusion of the fact-finding hearing the court reserved decision. At the fact-finding hearing, ACS submitted the investigative progress notes as Petitioner’s exhibit #1 in evidence. Petitioner’s exhibit #2 in evidence was an oral report transmission (“ORT”) dated July 12, 2019, that was called into the State Central Register by NYPD Officer Ramon Santos with allegations that the subject children were found home alone without supervision on that date. Petitioner’s exhibit #3 in evidence was an ORT dated January 3, 2020, from Jessica Simkins of Children’s Village, the foster care agency, with allegations that the subject child Ava was observed with a burn on her thigh and “the mother’s explanation is inconsistent with the injury.” Petitioner’s exhibit #4 in evidence was a photograph of a burn on the subject child Ava’s thigh. Petitioner’s exhibit #5 in evidence was a transcript of the respondent mother’s testimony at a hearing held on January 30, 2020, after ACS submitted an order to show cause (“OTSC”) to modify the Court’s visitation orders based upon Ava sustaining a burn during the December 23, 2019, through January 2, 2020, extended visit between the subject children and the respondent mother. At the fact-finding hearing, ACS called the respondent mother, child protective specialist (“CPS”) Uzhica and CPS Smith to testify. The progress notes submitted as Petitioner’s exhibit #13 spanned from July 12, 2019, through August 27, 2019. The records reflect that when CPS Del Carpio made a home visit on July 12, 2019, the respondent mother acknowledged that she left the children Jake, James, and Lucas, home alone to go to the pharmacy to pick up her medication. She stated that it was an emergency but she acknowledged that she should not have left the children unsupervised. The notes further document that CPS Llewellyn also went to the case address later in the evening on July 12, 2019, to remove the children from their mother’s care, and Ms. S stated to CPS Llewellyn that she left Jake and the twins home alone earlier in the day to go to pharmacy with Brooklyn and Eva to get her medication. She stated that she did not know when she left exactly, however CPS Llewellyn heard Jake yell out it “was around 8:00AM,” and that she only went to get the medication and had not left the subject children home alone previously. CPS noted that there were adequate provisions in the home, no safety concerns were observed, and that Ms. S was cooperative and assisted with calming the children during the removal and finally that the children were observed to be free of marks/bruises. Petitioner’s exhibit #1 also contains CPS Llewellyn’s interviews with Jake, Brooklyn, and Elian on July 12, 2019. Jake disclosed to CPS that on July 12, 2019, his mother went to the pharmacy with his sisters and left the twins home with him sleeping in their crib. He stated the police came, he gave them his mother’s cell phone number, she returned, the family spoke with the police and then the police left. Jake stated to CPS that his mother had left them home previously to go get her medication or to get other stuff. Brooklyn also told CPS that her mother went to the pharmacy on July 12, 2019 to get her medication, that she did not know when they left exactly, but that they had to go to multiple pharmacies because they were out of the medication and that when they returned home the police were there babysitting her siblings. Brooklyn and Elain denied having been left home alone in the past to CPS, as well as denied that their mother left Jake and her siblings home alone previously. Ms. S testified on July 12, 2019 she had sent Elian to school, gotten Brooklyn and Ava dressed, put the twins, Lucas, and James down for a nap and needed to go to the pharmacy to get her medication. According to Ms. S she left Jake, then age 10, in the home with the twins because they were sleeping and left to go to the pharmacy with Ava and Brooklyn. Ms. S testified that she then received a call from an NYPD officer who asked her where she was and asked that she immediately return home. She further testified that she ran back to the apartment and an NYPD officer was present with Jake and the twins in her apartment. Ms. S testified that the police gave her a “lecture” about leaving the children home alone and told her they had to call ACS. Ms. S stated that she had gone to the pharmacy, about 5-6 blocks away, as well as, stopped at Boost Mobile to get Jake a new charger for his phone. Ms. S also testified that Jake told her that when the police came, they knocked loudly on the door causing the twins to wake up and they started to cry. Jake said that he was initially scared, but the police were nice to him. Ms. S continued to testify that Jake had told her that he showed the police the bottles he made for the twins and the pampers he had changed. Ms. S stated that she observed the dirty diapers in the garbage when she returned to the apartment. Ms. S explained that she had taught Jake how to change diapers, make bottles and that he helped with the twins, setting up their play area and trying to be a “nurturing big brother” to them. Ms. S admitted that she had left Jake alone with the twins previously when going downstairs to get the mail or to go to a bodega located across the street. Ms. S also testified that Jake had been previously placed on a voluntary placement agreement due to his ADHD and behavioral issues, however, Ms. S testified that he was now much more responsible, took his medication and had the support of several case workers that monitored the case address as part of his trial discharge. Petitioner called CPS Uzchca who testified that she became involved with the family when she was assigned to investigate an ORT that was called into the State Central Register on January 3, 2020. According to CPS Uzchca she interviewed Ms. S on January 3, 2020. Ms. Sutherland disclosed that on December 23, 2019, she was changing the twins’ diapers and Ava was in the other room with her siblings and sustained a burn from the radiator. Ms. S informed CPS Uzchca that initially when Brooklyn told her Ava was burned on the radiator, she thought that she treated the burn appropriately and that Ava did not need to go to the doctor. CPS Uzchca testified that she observed the burn on Ava’s leg as being approximately one inch by one half inch. On cross examination, CPS Uzchca testified that Ms. S informed her that she treated Ava’s burn with cold water and ointment. CPS Uzchca further testified that Elian also informed her that he heard Brooklyn tell his mom that Ava was burned on the radiator, he denied that Ava screamed and cried and stated he saw his mother put ointment on Ava’s burn. Petitioner called CPS Smith who testified that she had been involved with the S family since January 2020 and was the supervisor in the unit in charge of investigating the January 3, 2020 ORT. CPS Smith testified that she interviewed Brooklyn and Ava on January 3, 2020. According to CPS Smith, Ava said “do you want to see my burn…burn my butt with the stove, and repeated “mommy burned my butt on the stove.” CPS Smith noted that at the foster home, where the interview took place, there was a stove next to a heater, and she asked Ava to show CPS Smith where she was burned. Ava grabbed CPS Smith’s hand and took her to the stove, CPS asked if that was the stove and Ava said no; she was not able to show CPS how she was burned. CPS Smith observed the burn to be two inches in diameter with darker edges and redness in the middle. CPS Smith also interviewed Brooklyn, who reported that Ava was burned during their visit with their mother by the radiator. Brooklyn said that they were in her bedroom, Ava had a toy in her hand, was running toward the heater, fell and burned herself on the heater. Brooklyn further informed CPS Smith that Ava cried, yelled “Mommy,” and ran to her mom. Brooklyn also stated that the burn was bleeding, got worse each day and that her mother put ointment on the burn. On cross examination CPS Smith also testified that Brooklyn told her that her mother did not burn Ava. The transcript entered in evidence by ACS as Petitioner’s exhibit #5 contain Ms. S’s testimony at a hearing held to modify the visitation order after Ava sustained a burn while on an extended unsupervised overnight visit with Ms. S from December 23, 2019, to January 3, 2020. The transcripts memorialized the following, Ms. S testified that Ava was burned on the afternoon of December 23, 2019, while she was changing the twins’ diapers in another room. She testified that she had been residing in that apartment for about three years, and a year prior Elian also was burned on the same radiator. Ms. S went on to state that she previously told ACS about the radiator issue and that they directed her to go to housing court for assistance. She stated that she has been litigating in Housing Court to address the radiator and had a court date scheduled for the following week. Ms. S and went on to testify that she heard the children saying Ava burned herself on the radiator, then Ava ran in saying look mommy and showed her the burn. She continued to testify that she put cold water on it for a while, then ice for a long time and started putting the prescription burn cream she had in the apartment from Elian’s burn the prior year. Ms. S testified that she applied the burn cream three times a day, as the package indicated was the correct amount. Ms. S testified that Ava initially cried for five to eight minutes, then seemed fine and started playing again without showing any signs of distress. She also testified that when Elian was burned on the radiator the prior year, she had taken him to the doctor. She went on to testify, that when Ava was burned, all the children ran into the room with Ava, telling her what happened, mainly that Ava was running and got burned on the radiator. Ms. S testified that she told Dr. Simkins that Ava was running by the radiator and was burned. She stated she attempted to call the agency on December 23, 2019 but did not get through because it was around the Christmas holiday. Ms. S testified that she did not try to reach the agency during the remainder of her visit with the children. She acknowledged that the burn was serious, stating that is why she was applying the ointment and ice as the medical staff had done when Elian had sustained a similar injury. Respondent’s counsel called Ms. S, she testified that on July 12, 2019, on her way home from the pharmacy with Ava and Brooklyn, the police called her and told her to return home immediately; they got her cell phone number from Jake. She further testified that she ran home, spoke to the officer who said that he was not going to arrest her. Ms. S testified that the officer informed her that ACS may come to her home, and he then left the home after speaking to her for about ten to fifteen minutes. According to Ms. S ACS arrived about six to seven hours later and removed the children. The attorney for the children did not present a case and did not support a finding of neglect against Mr. S. Family Court Act §1012(f) defines a “neglected child” as a child less than eighteen years of age whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired because of the failure of his parent or other person legally responsible for his care to provide the child with proper supervision or guardianship. Family Ct. Act §1012 (f)(i)(B). See Nicholson v. Scoppetta 3 NY3d 357 (2004). Actual or imminent danger of impairment is a “prerequisite to a finding of neglect” and ensures that the Family Court will focus on serious harm or potential harm to the child, not just what might be deemed undesirable parental behavior. Although a finding of neglect can be entered based upon a single isolated incident, the danger must be near or impending not merely possible. Id at 369. See also Matter of Zahir W. 169 A.D.3d 909 (2d Dept. 2019); Matter of Jordyn WW. 176 A.D.3d 1348 (3d Dept. 2019). At the fact-finding, ACS presented evidence that NYPD Officer Ramon Santos found the subject children Jake, Lucas, and James home alone on July 12, 2019, when he went to the case address. Additionally, the evidence demonstrated that Jake provided the police officer with his mother’s cell phone number and the police officer was able to reach Ms. Sutherland using the number, he asked her to return home immediately and she returned to the home with Brooklyn and Ava. Ms. S testified that she left James and Lucas home in the care of Jake because she needed to go to the pharmacy to get her medication and they were napping; Brooklyn and Jake also confirmed this in their statements to CPS. Ms. S testified that Jake knew how to change their diapers, make their bottles, “calm them down,” set up their play area and was a “nurturing big brother” to the twins, James, and Lucas. There was no evidence presented that James and Lucas were not adequately supervised by Jake, or that the children were harmed or at risk of harm during the relevant time. While the court acknowledges that leaving Jake home alone with James and Lucas was not ideal, it does not fall below the statutory minimum degree of care in the absence of any evidence of harm or imminent risk hereof. See Matter of Andy Z 105 A.D.3d 511 (1st Dept. 2013) [finding that the father's conduct that resulted in the child being left home alone overnight, while not ideal, did not fall below the statutory minimum degree of care. The statutory test for neglect is minimum degree of care --- not maximum, not best, not ideal --- and the failure to exercise that degree of care must be actual, not threatened]. Matter of Javan W. 124 A.D.3d 1091 (3d Dept. 2015) [Leaving young children home alone overnight cannot be condoned…nevertheless one incident of this improper and irresponsible behavior does not qualify as neglect without a showing of imminent --- rather than merely possible --- danger of impairment to the children]. See also Matter of Jordyn WW. 176 A.D.3d 1348 (3d Dept. 2019) [Court finds "while respondent's conduct was far from ideal and it is possible to speculate about the ways events could have turned out differently for the child, nonetheless, the record fails to establish that the child was in imminent danger."] The Court finds that ACS failed to prove by a preponderance of the evidence that Ms. S neglected the children by leaving the subject children Jake, James and Lucas home alone. ACS submits that Ms. S failed to provide adequate supervision and guardianship to the subject children, in that, during an extended unsupervised overnight visit, the subject child Ava, then 2, sustained a burn to her leg and the respondent mother failed to obtain adequate medical care. The evidence presented by ACS shows that during the extended visit, while the children were in their bedroom playing, Ava sustained a burn to her thigh. Ms. S testified, and the children confirmed in their statements to CPS, that she was in her room changing James’ and Lucas’ diapers, when Brooklyn told her Ava was burned on the radiator. Ms. S testified that Ava was initially crying for five to eight minutes, but that once she calmed down, Ava did not appear to be in pain or exhibit signs of distress for the remainder of the visit. Ms. Sutherland explained that she ran cold water over the burn, that she applied ice fora long time and then she applied a prescription burn cream to the area three times a day. Ms. S admitted that she did not take Ava to the doctor for treatment, explaining that Elian was burned on the same radiator the prior year, and that she treated Ava’s burn the same way Elian’s doctor had treated his burn. She also testified that she had filed a case in Housing Court, per ACS’ directive after Elian was burned, to attempt to have the radiator addressed by her landlord but that the proceedings were ongoing. There was no evidence presented that Ava’s burn required immediate medical care from a doctor, that not obtaining medical care from a doctor resulted in any physical harm to the child or that the treatment that Ms. S administered was inappropriate or insufficient to treat the injury. Further, there was no evidence presented during the fact-finding hearing that the statements that Ms. S made to Dr. Simkins, that Ava was burned on the radiator, were inconsistent with the nature of the injury or evidence or testimony establishing that the injury had been inflicted. To establish medical neglect, the court must find, by a fair preponderance of the evidence, that the parent’s failure to seek medical care placed the child’s physical condition in imminent danger of becoming impaired. In determining whether a parent exercised the minimum degree of care, the court must evaluate the parent’s behavior objectively, considering whether a reasonable and prudent parent would have acted or failed to act under the same circumstances. See Matter of Amir L. 104 A.D.3d 505 (1st Dept. 2013) quoting, in part, Nicholson v. Scoppetta 3 NY3d 357 (2004). The evidence must establish that the failure to obtain medical assistance resulted in impairment of the child’s condition or imminent danger thereof. Matter of Alexander D. 45 A.D.3d 264 (1st Dept. 2007); Matter of Ashlynn R. 189 A.D.3d 367 (1st Dept. 2020). See also Matter of Hofbauer 47 NY2d 648 (1979)["adequate medical care" does not require a parent to beckon the assistance of a physician for every trifling affliction which a child may suffer for everyday experience teaches us that many of a child's ills may be overcome by simple household nursing. Rather the statute requires a parent to entrust the child's care to that of a physician when such course would be undertaken by an ordinarily prudent and loving parent, solicitous for the welfare of his child and anxious to promote the child's recovery.] Matter of Faridah W. 180 A.D.2d 451 (1st Dept. 1992)[To find medical neglect, there must be a determination that the parent did not seek or accept medical care…There must also be a finding that the failure to obtain medical assistance resulted in impairment of the child's condition or imminent danger thereof.] The Court finds that ACS failed to meet its burden and prove by the preponderance of the evidence that Ms. S failed to provide adequate medical care for Ava following the burn she sustained to her leg. Petitioner failed to present any evidence that the medical care provided by Ms. S was insufficient, that the medical care Ms. S administered resulted in any impairment to the child or that her failure to take the child to the doctor resulted in any impairment or risk thereof to the child. IT IS ADJUDGED that based on the forgoing the petitions are dismissed with prejudice. This constitutes the decision and order of the court. Dated: June 15, 2021
