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In re Brad I.
Citations: 117 A.D.3d 1242; 985 N.Y.S.2d 758
Court: Appellate Division of the Supreme Court of the State of New York; May 15, 2014; New York; State Appellate Court
An appeal was filed regarding a Family Court order from October 29, 2012, which found Tiana K. and Brad J. to have neglected their child Brad I., following Family Court Act article 10 proceedings. The parents have three children: Dominick J. (born 2009), Emotions J. (born 2010), and Brad I. (born 2011). Dominick was removed from the mother’s care in September 2010, and Emotions was placed in foster care shortly after birth. Previous neglect proceedings were initiated against the mother concerning Dominick and Emotions, resulting in their adjudication as neglected children by September 1, 2011. In January 2011, an incident occurred at the father's residence where he was shot by an assailant while holding Dominick, who was visiting. Although both parents received an indicated report for inadequate guardianship, no neglect proceeding was initiated against the father regarding Dominick. Subsequently, a search warrant at the father's residence revealed his admission to drug use and selling drugs to support his habit. Following these events, the mother became pregnant with Brad, who entered foster care shortly after birth. A new proceeding was initiated against both parents, alleging derivative neglect based on their prior actions regarding Dominick. The Family Court adjudicated Brad as a neglected child and placed the father under supervision. The appeal also addresses the admissibility of evidence from the neglect of one child in determining the status of another. Under Family Ct Act § 1046 (a), evidence of neglect of one child can be used in evaluating neglect of another, provided that the nature and duration of neglect demonstrate significant flaws in parental responsibilities. The court concluded that the absence of a direct neglect proceeding against the father regarding Dominick does not prevent the continuation of the derivative neglect case concerning Brad. The court assessed the issue of derivative neglect concerning Brad, born after the home invasion and search of the father’s residence, by examining the direct neglect of Dominick, the father's other child. The critical evaluation centered on whether evidence of neglect towards Dominick was sufficiently proximate to support a finding of derivative neglect against Brad. The court found insufficient proof of neglect towards Dominick, which precluded the possibility of establishing derivative neglect for Brad. Family Court had based its findings of neglect on the father's poor judgment, including allowing the mother access to his home while Dominick was present, his drug use, and his behavior during the January 2011 home invasion. However, the court noted that violating an order to avoid contact with the mother alone could not substantiate a neglect finding. Although the father used marijuana regularly, there was no evidence of drug use or sales while Dominick was in his care, nor was there proof that his actions posed an imminent risk to any child. The court also examined the father's actions during the home invasion, rejecting Family Court's claims that he used Dominick as a shield against the intruder. Testimonies indicated that the father picked up Dominick while the child was upset, but this did not demonstrate a disregard for parental duties or safety. Without evidence of neglectful behavior posing an imminent threat, the court concluded that derivative neglect concerning Brad could not be established. Consequently, the Family Court's order was reversed, with the judges concurring. The record indicated that advice given to the parents about avoiding proximity due to domestic violence issues was not supported by a court order present in the appeal record, and none of the children were in the home during the search. Counsel's objections to testimony about specific items seized during the search were largely upheld, but the father admitted to having "several juvenile marijuana plants" in his home. The fact-finding order names both parents as respondents, but the mother consented to the child's placement with the petitioner while she completes services, making the dispositional order relevant only to the father. The child's attorney argues there is insufficient evidence to support the neglect finding. The petitioner conceded during the dispositional hearing that it lacked evidence on how the father's marijuana use affected the children. Testimony from caseworkers revealed that the father described an incident where he was shot in the arm during what he characterized as a robbery when a male intruder entered his apartment after the mother opened the door.