In the Matter of Donnisha S., A Child Under Eighteen Years of Age Alleged to be Neglected by Patricia W. and Adonis S., Respondents.
Administration for Children's Services: Phoebe
Respondent paternal-uncle: David Shalleck-Klein, Esq., of the
Respondent paternal-grandmother: Jessica Brown, Esq.,
subject child: Legal Aid Society, Juvenile Rights Practice by
Felicia Winder, Esq.
Alma M. Gomez, J.F.C.
Notice of Motion dated January 20, 2017, respondent-paternal
uncle, Adonis S., moved for summary judgment, pursuant to
CPLR 3212, and dismissal of the pending neglect petition
under Family Court Act (FCA) § 1051(c) as the aid of the
court is no longer required. By a second Notice of Motion
dated January 24, 2017, Mr. S. moved this court for a grant
of summary judgment as to paragraph 4 (a) of the neglect
petition. Likewise, by Notice of Motion dated January 27,
2017, Patricia W., respondent-paternal grandmother (Ms.
P.W.), moved the court to dismiss the neglect petition,
pursuant to FCA § 1051 (c), as the aid of the court is
unnecessary. Counsel for the Administration for
Children's Services and the Legal Aid Society, as
Attorneys for the Child, filed affirmations in opposition to
respondents' motions. For the reasons set forth below,
Mr. S.'s motions for summary judgment and dismissal of
the neglect petition, and Ms. W.'s motion to dismiss the
petition are denied.
October 31, 2016, the Administration for Children's
Services (ACS) commenced an Article 10 proceeding on behalf
of Donnisha S. (Donnisha or subject child), against Patricia
Warrant (Ms. W.), paternal grandmother, and Adonis S. (Mr.
S.), paternal uncle.
neglect petition alleges that both Ms. P.W. and Mr. S. are
persons legally responsible for Donnisha's care as
defined by Family Court Act (FCA) § 1012 (g). The
petition also alleges that the respondents failed to provide
the child with proper supervision or guardianship by
unreasonably inflicting or allowing to be inflicted harm, or
a substantial risk thereof, including the infliction of
excessive corporal punishment. Specifically, the petition
alleges that on October 28, 2016, Ms. P.W. admitted to Child
Protective Specialist (CPS) Angelica S. that on October 24,
she directed Mr. S. to hit Donnisha four times on her leg
with a belt. The petition further alleges that Mr. S., on the
same date, informed CPS S. that on October 24, 2016, his
mother directed him to hit Donnisha four times on her leg
with a belt as she had stuck her fingers in a cake. Mr. S.
reported that, on this date, he hit Donnisha four times on
her leg with a belt. According to the petition, CPS H.
observed Donnisha to have bruising and marks on her leg.
Lastly, both respondents reportedly informed CPS S. that they
will no longer care for the child, and no longer wish to have
her reside in their home.
October 31, 2016, Donnisha was remanded to the care and
custody of the commissioner. The court issued a restrictive
placement order directing that Donnisha remain in the home of
her maternal grandmother, Lori W. (Ms. W.), where she had
been placed on October 28, 2016. On November 4, 2016, Mr. S.
appeared in court and Bronx Defenders was assigned to
represent him in this proceeding. Ms. P.W. appeared on the
same date and Jessica Brown (Ms. Brown), an attorney on the
Assigned Counsel Panel (18B), was assigned to represent her.
Counsel for the respondents accepted service of the petition
and entered a denial of the allegations in the petition.
Neither respondent sought visitation with Donnisha.
January 11, 2017, a preliminary conference was held and both
respondents appeared with their attorneys. During the
conference, the attorney for ACS indicated that the service
plan for Ms. P.W. and Ms. S. consists of completion of a
parenting skills course and supervised visitation with the
subject child. Mr. S.'s attorney stated that it was Mr.
S.'s understanding that a service plan for him was
unnecessary as he was not serving in a parental role or
planning for the child. Nevertheless, his attorney agreed to
discuss the service plan with Mr. S. Counsel for Ms. P.W.
indicated that Ms. P.W. disagreed with the service plan as
she was not seeking visitation with the subject child, nor
was she interested in a relationship with the subject child.
At the time of the preliminary conference, the assigned ACS
child protective specialist had not made referrals for either
respondent because both respondents previously indicated that
they were not interested in services or visitation with the
January 20, 2017, Bronx Defenders, by Notice of Motion, moved
the court to grant summary judgment, pursuant to CPLR 3212,
to Mr. S. and dismiss the petition. In the alternative, Bronx
Defenders moved for dismissal of the petition pursuant to FCA
§ 1051 (c). Counsel for Mr. S. contends that summary
judgment is appropriate because there is an undisputed
factual record, and Mr. S.'s conduct did not fall below a
minimum standard of care. Counsel argues in the alternative,
dismissal, pursuant to FCA § 1051 (c), is appropriate as
the aid of the court is no longer required. On January 24,
2017, Bronx Defenders, by a second Notice of Motion, moved
for a grant of summary judgment, pursuant to CPLR 3212, as to
the allegation in Paragraph 4 (a) of the neglect petition.
Counsel asserts that this allegation was not addressed in the
prior motion. Counsel contends that Mr. S. is entitled to
summary judgment and dismissal of the allegation contained in
Paragraph 4 (a) as a matter of law as Mr. S. had no duty to
provide care for or plan for the subject child. Mr. S. is not
Donnisha's parent, he does not possess legal custody or
guardianship over Donnisha, nor has he held himself out as a
on January 27, 2017, Ms. Brown, on behalf of Ms. P.W., filed
a Notice of Motion seeking dismissal of the neglect petition
against her client pursuant to FCA § 1051 (c). Ms. Brown
argues that her client did not have legal authority over the
subject child, nor does she wish to have the child placed in
her care in the future. Accordingly, the aid of the court is
not required and the neglect petition against her should be
January 30, 2017, Counsel for ACS filed response papers in
opposition to Mr. S.'s Motion for Summary Judgment and
Dismissal. Counsel for ACS submits there are many triable of
issues of fact outstanding, that Mr. S. has failed to proffer
any admissible evidence in support of his motion, and the
mere fact that Mr. S. does not wish to care for the subject
child fails to obviate the need for a full trial on the
merits. Counsel argues that, ACS, as the non-moving party
must be given the most favorable inferences discernable, and
the allegations contained in the neglect petition must be
liberally construed in favor of the presentment agency.
Further, the gravamen of counsel's argument in opposition
centers upon the notion that the aid of the court is required
because should the court grant Mr. S.'s motion, on either
of the two grounds, there would be no orders in place to
ensure the child's safety and permanency. Additionally,
Mr. S.'s alleged conduct will go unpunished, thereby
enabling Mr. S. to avail himself of privileges typically
foreclosed to a respondent following a finding of neglect. On
January 31, 2017, counsel for ACS filed response papers in