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Court Determines Neglect within Meaning of Family Court Act


On March 12, 1996, the accused mother brought her two-year-old daughter to North Central Bronx Hospital for a neurological examination and psychiatric evaluation on the recommendation of her pediatrician. The child suffered from febrile seizures, frequent ear infections and pica, an eating disorder involving ingestion of nonfood such as paint chips. The director of the hospital’s Child and Adolescent Crisis Intervention Program, which operates out of the emergency room, examined the child and observed the mother’s behavior while she was in the emergency room with her daughter. A New York Family Lawyer said he testified at the Family Court fact-finding hearing she was extremely irritable and hostile toward the child. Specifically, she called the child a bitch; repeatedly referred to the child as a bad child. The child deliberately engaged in disruptive behavior to irritate her mother, such as climbing on the stove, turning on the burners, and setting papers on fire. The mother said that her child barely slept at night, and that she in turn prevented the child from napping during the day to show her what it felt like to stay awake. While at the hospital, when the child indicated she had to go to the bathroom, the mother told her to go ahead and wet herself. The accused mother also said it was a miracle that she had not killed the child; that she had thoughts of killing herself; and that she had an insurance policy that would take care of her other children.

The hospital director observed that, while in the emergency room, the child stayed away from her mother, running and climbing everywhere but the mother made no effort to supervise or restrain her. Based on his observations and examination of the child, he believed that Megan was suffering from various language disorders and hearing impairment, as well as severe hyper-activity. A New York Custody Lawyer said based on the mother’s statement that the child ate lipstick, nail polish and powder, he suspected that she might also have lead poisoning. He informed the mother that her child needed certain assessments or tests, and explained that some of her disruptive behavior might be due to her physical ailments. She denied that the child suffered from any of the physical ailments enumerated and initially refused to consent to any of the tests, insisting that the child did not need them.
The hospital director further testified that the accused mother said three times that she had a weapon on her and made specific threats toward him and other hospital staff. He and the staff became so concerned by her behavior and threats that they were moved to contact the adult psychiatric emergency room to have respondent examined.

The mother testified at the hearing and denied making any of the remarks attributed to her by the doctor. As to the box cutter, a Bronx Family Lawyer said he explained that she always carried it because the child’s father, who lived in the same building, threatened to kill her when she came into the building, which was down the block from where she lived with her children. Indeed, although she denied speaking of the child’s father at the hospital, she told hospital staff that her child’s father was stalking her.

Inexplicably, the Family Court rejected the doctor’s testimony and dismissed the petitions. According to Family Court, what the doctor found troubling was nothing more than the mother’s expression of justified frustration in the face of the child’s disruptive behavior, failure to become toilet-trained and sleeplessness. In addition to rejecting the doctor’s conclusions, the Family Court also disregarded his factual account of what transpired at the hospital, finding instead that respondent became hostile only when she learned that Administration for Children’s Services had been called and her children might be taken away from her. With respect to the box cutter–and the mother’s explanation for it–Family Court observed that the accused mother had not actually taken it out to threaten anybody.

In its decision, issued on the record immediately following the hearing, the Court not only speculated as to the doctor’s personal status since he probably has not been a parent but also injected its own personal experience, or lack thereof, to conclude that the accused mother was no more than an exhausted mother of an uncontrollable child. A Bronx Custody Lawyer said finding further fault with the doctor’s assessment of the mother’s behavior, the Family Court commented that he should be working in a very happy, orderly environment, not in the Bronx, because he certainly lacks any knowledge of the culture and the traditions. There is no basis whatsoever in the record for the observation, and the court notes the doctor’s testimony that, having examined approximately 100 children during his tenure at the hospital, he was prompted to call Administration for Children’s Services on only three occasions. The court further rejects and at a loss to explain the Family Court’s offensive and demeaning intimation that the mother’s behavior reflects Bronx culture and traditions.

To the contrary, the court find that the doctor’s credible testimony established by the preponderance of the evidence that the child was a neglected child within the meaning of Family Court Act, whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the parent’s failure to exercise a minimum degree of care in providing her with proper supervision or guardianship or by any other acts of a similarly serious nature requiring the aid of the court.

A finding of neglect needs no showing of past or present harm to the child. Rather, a preponderance of the evidence must show parental failure to exercise a minimum degree of care, impairment or imminent danger of impairment to the child, and a causal connection between the two. This standard was met in the case by evidence of the child’s medical and behavioral history, the doctor’s own observation and examination of the child, and the conduct and remarks of the accused mother as witnessed by the hospital staff. Danger of impairment was further heightened by the mother’s psychological state, notwithstanding the fact that she did not require immediate hospitalization and was not conclusively diagnosed. The court’s note that, while the child cites her diligence in bringing her child to the hospital in the first instance, she resisted the doctor’s attempts to schedule the necessary workups, denying the possible physical causes of the child’s behavior.
Finally, a finding of derivative neglect as to the two older children should have been made based on the same evidence pursuant to Family Court Act. Family Court also had before it the psychological evaluations of all three children, which indicated that the accused mother had infected the older siblings with the notion that the child is a bad child possessed of evil spirits, causing them to treat her accordingly.
Accordingly, the order of the Family Court which, after a fact-finding hearing, dismissed three petitions brought pursuant to Family Court Act Article 10 alleging neglect on the part of the accused mother should be reversed, on the law and the facts, without costs, the petitions were reinstated, findings of neglect entered, and the matter remanded for a dispositional hearing before another Judge of the Family Court, pending which the remand status of the children is continued.
Children are naturally active and would do everything they please. If you are considering filing a neglect action, you would need the Bronx County Family Lawyer together with the Bronx County Child Custody Lawyer. Stephen Bilkis and Associates can also recommend the winning team of Bronx County Order of Protection Attorney.

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