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In re: Virginia T.F. a Child under 18 years old, Neglected by v. Brittany O’L-F. Ruperto F., Jr., Respondents.

No. NN-16543/16

March 10, 2017

Facts of the Case

On 5/19/2015, the Administration for Children Services “ACS” filed a petition pursuant to Family Court Act 1012 against the respondent mother Brittany O’L-F and respondent father Ruperto F. Jr. regarding the child “Robin” who was born in May of 2015.

Allegations were made that the mother tested positive for marijuana, she was only 15 years old at the time, and suffers from mental illness for which she has been hospitalized. She had not undergone treatment and had discharged herself from the hospital after a hysterical outburst.

The allegations against the father include that he was aware of the marijuana use, he even supplied it, he also is mentally ill and is neglecting to attend his mental health appointments. The petition also alleged that their home is inadequate to raise a child.

A fact-finding hearing was held and it was ordered by the judge that the couple comply with mental health treatment, complete a substance abuse program and complete periodic drug screenings.

The ACS filed a second petition alleging negligence and that the parents are failing to comply with the order as it applies to their newborn child Virginia, who was born in May of 2016.

It was added that the mother had missed multiple appointments for substance abuse and she withdrew from her treatment program. It was reported that the mother did indeed suffering a relapse in using drugs and alcohol. The father routinely leaves the child the custody paternal grandfather for days at a time, without notice. The child has also stayed at the paternal grandmother’s home who has not been cleared by ACS.

The Evidence

ASC provided Ms. Garrido as the sole witness. This hearing addressed the well-being of Virginia only. Garrido stated that the child is with the paternal grandfather and no effort has been made to find proper housing. ACS wishes for both children to go into foster care. The mother was living in a shelter and had attended treatment.

Apparently however she relapsed, and left the child with the grandfather. The mental health issue has not been formally addressed.

Legal Analysis

The court finds the witness credible. No direct harm has occurred to either child. The purpose of this petition is to argue that the newborn is being derivatively neglected. This is supported by the mother’s relapse and inaction by the father.

The ACS has the burden to prove their claim in a child protective case (matter of Abbygail H. M.G. 129 AD3d 722 (2d Dept. 2015), Matter of Jaden K.E. 96 AD3d 744 (2d Dept. 2012). The court has held that proving is admissible to prove the neglect of the other (NY Fam Ct. 1046) (a)(i)(McKinney’s 2017) Matter of Jahmya J., 137 AD3d 1132, 1133 (2nd Dept. 2016).

However, there is no ruling that says finding neglect of one sibling results in the derivative neglect find of another sibling (Matter of Palladine M., 84 AD3d 806, 807 (2d Dept. 2011) see also the Matter of Andrew B.-L 43 AD 1046, 1047 (2nd Dept. 2007). A neglect finding without more does not establish neglect of the sibling.

In this case, the pattern of neglect was established in the events that led up to Robin’s birth. The parents did not seek help. The substance abuse problem was such that a child would be imminent harm. However, the facts of the prior petition are not the facts here. While the parent’s compliance has not been perfect, they have made an effort. Though there was a relapse, the parents level of participation is sufficient to show a change in circumstances. Based on the current circumstances this court could not find that Virginia has been neglected.

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