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The issue in this case is whether respondent had failed to properly care for or supervise his four year old son.

In this Child Neglect proceeding under Article 10 of the Family Court Act (“FCA”), Petitioner Department of Social Services brought a Petition in December 2010 charging that the Respondent had failed to properly care for or supervise his four year old son. The subject child was placed with Respondent pursuant to FCA § 1055 and, until late October, 2010, resided with Respondent at his home in Mount Vernon, New York.

A Nassau Criminal Lawyer said that, the fulcrum of the Petition is an incident that took place at Respondent’s Mount Vernon apartment during the evening of October 29, 2010. The subject child was then residing with Respondent in that apartment. According to the Petition, on the afternoon of October 29 Respondent was observed to be intoxicated to the point of impairment when he arrived to pick the subject child up from school, such that “his speech was slurred and he was stumbling.” That evening, the DSS Emergency Services Unit responded to Respondent’s home; he refused to allow them to enter. Subsequently, the Mount Vernon Police forced entry into the apartment for domestic violence. Once inside, DSS found the child to be safe, but discovered a baseball bat and knife with a “10 inch blade” underneath a bed, and “readily accessible to the four year old subject child.” In addition, as soon as DSS had an opportunity to carefully observe the child, DSS workers allegedly observed a discoloration under one of his eyes which, according to Joshua, had been caused when his father struck him when he dropped a toy. Immediately following the October 29 incident, the child was removed from Respondent’s care and placed with a foster family.

A Nassau Sex Crime Lawyer said that, respondent entered a general denial to the allegations of the Petition, and a fact finding hearing was commenced on February 4, 2011 and continued intermittently for several days thereafter until May 7, 2011. Petitioner called several witnesses, including the DSS Emergency Services workers who arrived at Respondent’s apartment on October 29; a DSS Child Protective Services worker who spoke to and observed the child shortly after the October 29 incident; and the child’s teacher, who testified as to Respondent’s conduct and apparent condition when he picked the child up from school on the afternoon of October 29. Petitioner also adduced documentary evidence including photographs of the subject child allegedly depicting an injury to his eye, and an indicated report describing Respondent’s behavior during the afternoon of October 29. That report, when received by DSS, prompted their visit to Respondent’s home that evening. Respondent testified on his own behalf. In essence, he denied any intoxication or that he had struck his son; Respondent did concede, however, that he failed to provide DSS with access to his apartment, but sought to justify his conduct on the grounds of an overarching concern for his and the child’s personal safety.

A Nassau Criminal Lawyer said that, at the conclusion of the hearing Petitioner argued that Respondent’s conduct on October 29 whether actuated by a legitimate concern for his and the child’s safety or not clearly violated the terms of the agreement Respondent had made when the child was entrusted to his care, namely, that he would permit DSS to monitor him and his household in order to periodically verify the child’s well being. Petitioner also maintains that the fact that a readily accessible knife and bat were found in the apartment is indicative of neglect, as well as Respondent’s alleged intoxication and the report that he struck the child.

Conversely, Respondent contends that DSS acted unreasonably by arriving at his apartment after dark in what he described as a high sex crime area and, that in any event, DSS had no basis for a home visit at all since, Respondent claims; he was not intoxicated and never struck the child. As far as the knife and bat are concerned, Respondent asserted that he needed them for protection and they were located under his, not the child’s bed.

The issue in this case is whether respondent had failed to properly care for or supervise his four year old son.

Based upon the testimony and documentary evidence adduced at the hearing and for the reasons set forth below, the Court finds that in view of Respondent’s failure to comply with the important terms and conditions of the child’s placement with him, Petitioner has sustained its burden of proving by a preponderance of the evidence that the child has been neglected by Respondent and that the child is found to be a neglected child under FCA 1012(f).

The sine qua non of FCA § 1055 placement is supervision. DSS is charged with that responsibility, to which the guardian must submit. Unless the guardian whether a parent or foster parent is willing and able to be supervised, such placement cannot succeed; DSS must be able to independently verify compliance by the guardian with the terms and conditions established by the FCA 1055 placement order. Absent such compliance, the purpose of such placement would be undermined and the child’s well being and security jeopardized.

In order to ensure the subject child’s safety and security, extensive and sometimes elaborate conditions, tailored to the particular situation and by which the guardian must abide, are often put into place as a precondition of supervised placement. Several such conditions by which Respondent agreed to comply were ordered here when the child was placed with him. As the Second Modified Permanency Hearing Order, entered September 20, 2010 (the “Permanency Order”) prescribed, Respondent agreed and the Court ordered that DSS would “supervise the placement” of the child with him and that he would comply with a number of conditions all to be monitored by DSS.

In the instant case, Respondent failed to comply with one of the most elementary conditions that the child be physically safe and, more to the point, that DSS by “announced and unannounced visits to respondent’s residence be offered the opportunity to verify that fact. The facts adduced at the hearing so show.

It is undisputed that when the child was placed in Respondent’s care under FCA § 1055, Respondent freely agreed and was ordered to abide by several conditions governing his conduct; he agreed that he would, in effect, submit to DSS supervision including periodic and possibly random visits by DSS to his home, for any reason or for no reason. The unstated but apparent purpose of this condition is clear: DSS is the entity ultimately and statutorily responsible for a child’s care under a FCA § 1055 placement. As such, DSS must be able to adequately monitor the guardian’s relationship with the child including undertaking announced and unannounced visits to the home in order to remain assured that the child is well cared for in that placement and that, at minimum, his or her condition is not “impaired” or in “imminent danger of becoming impaired” (FCA § 1012(f)(i). That such visits and the effect of the ongoing potential for them are an essential part of the agreement that all FCA § 1055 care givers enter into cannot be gainsaid.

While there appears to be no case law that specifically addresses the issue of whether a FCA § 1055 caregiver’s failure to permit DSS access for a home visit, standing alone, constitutes neglect, courts have held that action or, more to the point, failure to act by a parent or guardian that carries the potential to negatively affect the welfare of the child in placement may well amount to neglect. Indeed, several types of action or inaction, the consequences of which has not, but may potentially prove deleterious to the safety or welfare of the child in placement; have been held to constitute neglect.

For example, a parent or guardian’s failure or refusal to participate in a drug or alcohol treatment program, while in and of itself not injurious to the child, holds such potential for “imminent” future harm within the meaning of FCA § 1012(f) that such behavior has been held to constitute neglect. This and other examples of conduct that, while not directly harmful to the child, carry such potential for it that they are deemed neglect abound, and range from failure by the guardian to take prescribed medication to allowing the child to be left with an unsuitable sitter.

As far as the portion of the Petition relating to the bruise below one of Joshua’s eye’s and Petitioner’s claim that it was caused by Respondent is concurred, the testimony and documentary evidence adduced at the hearing proved somewhat ambiguous. The bruise was not discovered until the day after Joshua was removed from Respondent’s apartment. Once examined, the bruise was apparently found not to be of recent origin and its cause Respondent or typical child’s play rather unclear. In any event, in view of the Court’s finding of neglect with respect to Respondent’s behavior on the evening of October 29, 2010, the Court need not reach the issue of the bruise under Joshua’s eye.

Accordingly, the Court finds that the Petitioner has sustained its burden pursuant to FCA § 10 of proving child neglect of Joshua by Respondent by a preponderance of the evidence. All parties are directed to appear on September 16, 2011 at 9:30 a.m. for a dispositional hearing.

If a child has been subject of a sex crime seek the representation of a Nassau Sex Crime Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates, in order to protect the said child.

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