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ACS Files Suit Against Mother AllegingEducational and Medical Neglect

A New York Family Lawyer said that, ACS filed a petition against respondent mother alleging educational and medical neglect as well as a failure to comply with April 2004 and August 2004 referrals to the Family Preservation Program. Specifically, the petition alleged that from July 2004 until the filing of the petition, respondent mother failed to ensure that the child attended weekly psychiatric appointments and received prescribed medication although he had been hospitalized and diagnosed with “impulse control disorder and conduct disorder.” In addition, the petition alleged that the child missed 45 days of school during the 2003-2004 school year and that respondent mother never signed the necessary paperwork for the child to see a paraprofessional to assist him with his homework although a referral had been made by the child’s guidance counselor. A fact-finding hearing was conducted over the course of 14 months during seven court dates beginning on November 28, 2005 and ending on January 25, 2007. At the conclusion of the hearing, the Judge dismissed the petition with prejudice.

A New York Custody Lawyer said that, eight months later, ACS filed the instant petition against respondent mother alleging among other things educational and medical neglect as well as a failure to comply with referrals for services. The first paragraph in the petition alleges that respondent mother suffers from a personality disorder and that she has refused to undergo a mental health evaluation. The second paragraph in the petition alleges that respondent mother failed to ensure that the child Jeffery attends weekly psychiatric appointments and receives prescribed medication although he has been diagnosed with “attention deficit disorder.” The third paragraph in the petition alleges that the child’s whereabouts are unknown although respondent mother indicated that he was residing in Florida with an older sibling and he was observed in New York in July 2007. The fourth paragraph in the petition alleges that Jeffery missed 65 days of school during the Fall 2005 semester, 77 days of school during the Spring 2006 semester, 69 days of school during the Fall 2006 semester and 24 days of school during the Spring 2007 semester. The fifth paragraph in the petition alleges that respondent mother failed to have a dog removed from her home although the dog bit two children in May 2005, as well as Jeffery in August 2007 and that he required medical attention as a result. The sixth paragraph in the petition alleges that respondent mother refused offers for preventative services and family counseling, that she has inadequate food in the home and that she lacks a reliable means of support.

A Westchester County Family Lawyer said the issue in this case in this pre-fact-finding Family Court Act article 10 proceeding is whether to grant respondent mother’s motion to dismiss specified allegations in the petition filed by the Administration for Children’s Services based on res judicata, failure to state a cause of action and a defense established by documentary evidence.

A Westchester County Custody Lawyer said the court commences its analysis by noting that on a motion to dismiss a petition, the pleadings are to be afforded a liberal construction. The court must accept the facts alleged in the petition as true, accord the petitioner the benefit of every possible favorable inference which may be drawn from the petition and determine only whether the facts as alleged fit within a cognizable legal theory. If the facts stated set forth any cause of action cognizable at law, the pleadings must be sustained. Issue finding rather than issue resolution is the court’s function.

The relevant inquiry is whether the proponent of the pleading has a cause of action, not whether he has stated one or whether he may ultimately be successful on the merits. In other words, “draftsmanship is secondary. Under the CPLR, if a cause of action can be spelled out from the four corners of the pleading, a cause of action is stated and no motion lies under CPLR 3211 § (a) (7).” “The pleading can be parenthetically drawn; it can reek of miserable draftsmanship. That is not the inquiry. We want only to know whether it states a cause of action—any cause of action. If it does, it is an acceptable CPLR pleading”.

The Court must also be cognizant of the fact that the powers of the Family Court under article 10 are intended to be quite broad. Family Court proceedings do not focus on penal sanctions but are instead directed to the protection of minors. The statute is designed to “help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being”. With that mandate in mind, the courts have repeatedly held that “the usual treatment of transgressions by limiting legal prosecutions thereof to a statutory period is unavailing in Family Court,” which recognizes no statute of limitations.

Nevertheless, it is well-settled that a finding of neglect cannot be based on past deficiencies alone. Allegations in a neglect petition may not be “stale” and must refer to present, near contemporaneous or ongoing conduct. The Doctrine of Res Judicata Precludes the Relitigation of Matters actually Litigated as well as any Matters that might have been Litigated in a Prior Proceeding. In addition, the doctrines of res judicata and collateral estoppel preclude the relitigation of allegations previously dismissed with prejudice by court order.

Res judicata or claim preclusion is invoked to prevent a party, or one in privity with a party, from relitigating a previously litigated action. Generally, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or seeking a different remedy. Under the doctrine of res judicata, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law decided therein in any subsequent action involving the parties to a litigation and those in privity with them.

Res judicata bars not only matters that were actually put in issue in the prior action, but also those that should have been. A judgment in one action is conclusive in a later one not only as to any matters actually litigated, but also as to any that might have been litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first. The purpose of res judicata is to reduce litigation and conserve the resources of the court and litigants based upon the notion that it is not fair to permit a party to relitigate an issue that has already been decided against it. The underlying assumption is that the party against whom preclusion it is being invoked has already had a day in court and if they are unsatisfied, the proper course is to appeal the unsatisfactory result rather than ignore it and attempt its relitigation in a separate action.

Application of these criteria to the facts at bar leads this Court to conclude that the allegations in the second petition regarding incidents that took place prior to January 25, 2007, the date the first proceeding was dismissed with prejudice, are barred from litigation by res judicata as “not only matters that were actually put in issue in the prior action, but also those that might have been.” Additionally, the Court finds that almost all of the allegations regarding incidents that allegedly took place prior to the completion of the first fact-finding hearing are “stale” and unrelated to present, near, contemporaneous or ongoing conduct.

The prevailing view, as summarized in the Second Restatement of Judgments is that “the law of res judicata now reflects the expectation that parties who are given the capacity to present their entire controversies shall in fact do so”. In the second petition ACS filed against respondent mother, it included allegations of neglect of which it must have had actual knowledge long before January 25, 2007. But ACS never sought leave of the court to file an amended petition and given the provision in Family Court Act § 1051 (b) for amending the pleadings to conform to the proof, and the CPLR’s liberal rules for amendment, it is unlikely that leave to amend would have been denied. Yet ACS chose instead to wait until the 2004 petition had been dismissed to file “new” allegations of neglect that are in fact “old” allegations that should have been presented earlier.

Here, respondent mother has moved to dismiss the third allegation in the petition based upon purported documentary evidence. The motion is denied. The “documentary evidence” submitted by respondent mother in support of her motion consists of several pages of what is apparently a portion of the ACS case record. These documents are inadmissible and therefore cannot be considered on a motion to dismiss pursuant to CPLR § 3211(a) since they do not satisfy the statutory requirements for “documentary evidence.”

The motion to dismiss is granted as to the second allegation in the petition to the extent that it alleges that respondent mother failed to ensure that the child attended weekly psychiatric appointments and received prescribed medication prior to January 25, 2007. The motion is also granted as to the fourth allegation in the petition to the extent that it alleges that the child missed school during the Fall 2005 and Spring 2006 semesters. The motion is also granted as to the fifth allegation to the extent that it alleges that respondent mother failed to have a dog removed from her home in May 2005. Clearly those incidents, which took place between the date that the first petition was filed and the date that it was dismissed, were known to ACS during the prior proceeding and would have been put in issue in the prior action had an appropriate motion to amend the prior petition been granted.

To the extent that the petition alleges medical neglect and failure to take necessary appropriate measures to protect the child from known risks associated with the dog, based on events that took place after the dismissal of the first petition, the motion to dismiss is denied. Likewise, to the extent that the petition alleges educational neglect for the period from the fall 2006 semester until the Spring 2007 semester, the motion to dismiss is denied. Although the fall 2006 semester had concluded before the first fact-finding hearing was completed, it is possible that ACS would not have known of the child’s fall 2006 attendance in time to have filed a motion to amend the first petition. Additionally, the motion to dismiss is denied with respect to the allegations concerning educational neglect for the period following the fall 2006 semester. Neither res judicata nor collateral estoppel bar a new petition from being filed notwithstanding dismissal of an earlier petition against the same parent, if the later petition presents subsequent allegations of neglect not covered by the earlier petition.

The remaining allegations in the petition, although in artfully drafted, adequately allege, for pleading survival purposes, a cause of action under article 10 of the Family Court Act. The Court rejects respondent mother’s objections to the sixth paragraph of the petition based on the assertion that it seeks to penalize respondent mother for her poverty. Allegations that a parent has failed to take advantage of proffered assistance and chooses instead to live with the children under conditions that place them at risk have been held to support an abuse and neglect finding. The relevant inquiry is whether ACS as the proponent of the pleading has a cause of action, not whether they have stated one or whether they may ultimately be successful on the merits.

For the reasons set forth herein, the Court grants the motion in part and denies it in part. To the extent that the current petition is based on matters already litigated and matters that should have been litigated during the prior child protective proceeding, the allegations in the petition are dismissed. The motion to dismiss is denied with respect to the remaining allegations.

Res judicata applies only when the same cause of action is repeated and has therefore been referred to as “claim preclusion.” If you are in the same situation, seek the representation of a Kings Abuse and Neglect Attorney and Kings Order of Protection Attorney at Stephen Bilkis and Associates.

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