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In re Donnisha S.

Family Court, Bronx County

April 19, 2017

In the Matter of Donnisha S., A Child Under Eighteen Years of Age Alleged to be Neglected by Patricia W. and Adonis S., Respondents.

          For Administration for Children's Services: Phoebe Azran-Rosen, Esq.

          For Respondent paternal-uncle: David Shalleck-Klein, Esq., of the Bronx Defenders

          For Respondent paternal-grandmother: Jessica Brown, Esq., assigned counsel

          For subject child: Legal Aid Society, Juvenile Rights Practice by Felicia Winder, Esq.

          Hon. Alma M. Gomez, J.F.C.

         By 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.

         RELEVANT PROCEDURAL HISTORY

         On 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.

         The 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.

         On 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.

         On 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 subject child.

         On 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 functional parent.

         Similarly, 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 dismissed.

         On 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 ...


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