In re Brad I.
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Connerton, J.), entered October 29, 2012, which granted petitioner’s application, in a proceeding pursuant to
Respondent Tiana K. (hereinafter the mother) and respondent Brad J. (hereinafter the father) are the parents of three children—Dominick J. (born in 2009), Emotions J. (born in 2010) and Brad I. (born in 2011), the latter of whom is the subject of this proceeding. The record reflects that Dominick was removed from the mother’s care in September 2010, and Emotions was placed in foster care shortly after her birth. None of the children ever resided with the father. In October 2010, petitioner commenced a neglect proceeding against the mother with respect to Dominick and, in December 2010, commenced a similar proceeding against the mother with respect to Emotions. The mother thereafter made certain admissions and, by order entered September 1, 2011, Family Court (Pines, J.) adjudicated Dominick and Emotions to be neglected children and continued their placement with petitioner.
In the interim, in or about January 2011, the mother stopped by the father’s residence to borrow some money. According to the father, when he went upstairs to retrieve the requested funds, Dominick, who apparently was visiting for the evening,
Following these events, the mother became pregnant with Brad. Shortly after his birth, the child entered foster care and petitioner commenced the instant proceeding against the mother and the father, alleging that they derivatively neglected Brad based upon—in large measure—their conduct with respect to Dominick in the context of the home invasion incident. Following a fact-finding hearing, Family Court (Connerton, J.) adjudicated Brad to be a neglected child and, after a dispositional hearing, placed the father under petitioner’s supervision.4 This appeal by the father ensued.5
Pursuant to
Family Court predicated its finding of derivative neglect as to Brad upon what it deemed to be the father’s demonstrated “lack of judgment with [respect to] Dominick”—citing the father’s decision to admit the mother to his residence while Dominick was present, the father’s admitted drug use/alleged sales, his corresponding failure to “voluntarily involve himself in services to address his deficits as a parent” and his conduct during the January 2011 home invasion. Even assuming that the father had been ordered to have no contact with the mother while Dominick was in his care (see note 1, supra), the violation of any such order—standing alone—would not be sufficient to sustain a finding of neglect (cf. Matter of Jada K.E. [Richard D.E.], 96 AD3d 744, 745 [2012]; Matter of Andre G., 64 AD3d at 915). Additionally, although the father admittedly smoked marihuana on what could be regarded as a regular basis, the record is bereft of any evidence that the father used (or sold) drugs while Dominick (or any other child) was in his care, nor
Finally, with respect to the home invasion incident, although we agree that using one’s child as a human shield to ward off an armed intruder indeed would constitute a fundamental misunderstanding of the duties of parenthood, the record does not support Family Court’s findings that the father “grabbed” Dominick before “return[ing] to face the gunman” or that the father picked up Dominick “believing that a third person wouldn’t shoot him if he was holding a child.” Even disregarding the father’s testimony as to the sequence of events leading up to the shooting, the testimony of petitioner’s caseworkers—at best—establishes that the father picked up Dominick, who apparently was upset and crying, at some unspecified point while the intruder was present in the home.7 Such testimony, in our view, falls far short of establishing that the father—in total disregard of both his parental responsibilities and his child’s safety—used Dominick in an attempt to dissuade or repel the armed intruder. Absent evidence that the father neglected Dominick by engaging in conduct that posed an imminent threat to his welfare, there can be no finding of derivative neglect as to Brad (see Matter of Andre G., 64 AD3d at 914-915; Matter of Desmond LL., 61 AD3d 1309, 1309-1310 [2009]; compare Matter of Brandon T. [Guillaume T.], 114 AD3d 950, 950-951 [2014]; Matter of Xiomara D. [Madelyn D.], 96 AD3d at 1240-1241; Matter
McCarthy and Garry, JJ., concur.
Lahtinen, J.P. (dissenting).
Inasmuch as a sound and substantial basis in the record supports Family Court’s finding of derivative neglect, I respectfully dissent. A parent who “misus[es] a drug or drugs” may be found to have neglected his or her children (
The majority finds this evidence to be insufficient to support a finding of neglect because “the record is bereft of any evidence that the father used (or sold) drugs while Dominick (or any other child) was in his care, nor is there sufficient evidence to support a finding that his conduct in this regard posed an imminent risk of injury or impairment” to his children. When police raided the father’s residence shortly after the shooting, however, they discovered a bedroom with furnishings, clothing and toys. Given this proof of a child’s regular presence, the father’s regular use and sale of drugs could readily be construed as placing his children in imminent danger of impairment such as to support a finding of neglect (see Matter of Brandon R. [James U.], 114 AD3d at 1028-1029; Matter of Lavountae A., 57 AD3d 1382, 1382-1383 [2008], aff’d, 12 NY3d 832 [2009]). In my view, Family Court could further determine from this evidence that the father’s actions exhibited “such an impaired level of parental judgment as to create a substantial risk of harm to any child under [his] care” that would warrant a finding of derivative neglect (Matter of Andrew DeJ. R., 30 AD3d 238, 239 [2006]; see Matter of Eugene L. [Julianna H.], 83 AD3d 490, 490 [2011]).
Ordered that the order is reversed, on the law, without costs, and petition dismissed.