BAD ROLE MODEL IS NOT ABUSE AND NEGLECT

If this was a dispute in a parent custody battle, Mr. V's behavior could lead a court to say that the other parent should have primary or even sole custody and Mr. V can have parenting time (and it could also be supervised visitation). But in a neglect case, the problem a court faces is that if there is no other responsible family to take care of the child, the child goes into the foster care system.

MATTER OF ARMANI, 2022 NY Slip Op 50898 - Kings Co. Family Court 2022:

"By petition dated April 15, 2021, ACS alleges that Peter V. is a person legally responsible for his nephew Armani and that he neglected him by 1) providing inadequate supervision and guardianship due to bizarre behaviors; and 2) neglecting his education. On or about January 22, 2022, petitioner notified respondent and the AFC that it would seek to conform the pleadings to the proof, pursuant to FCA 1051(b), essentially adding a claim of excessive corporal punishment.

Fact-finding on this petition took place on January 11, May 17, May 27, June 22, August 3, and August 30, 2022. The record consisted of Petitioner's Exhibits 1-3 and 5A and 5B; the testimony of Isabelle F., Stacy Levine, and Yola Slowe-Richards; and the testimony of Peter V. The AFC opposes a finding.

Based on the testimony of all the witnesses which the Court credits as credible on this point, the Court finds that Mr. V. was a person legally responsible for his nephew Armani at relevant time periods, as he lived together with Armani and Armani's mother (Mr. V.'s sister, Szabina V.) and other relatives as one family unit for many years. When Ms. V. was sent to federal prison, Mr. V. took on primary caretaking for Armani.

As a preliminary matter, regarding Pet Ex's 1-3, the Court listened to them again, and studied the text message portions of Ex.'s 2 and 3 carefully, but could not glean much more in terms of content than seemed apparent when listening on the record initially. The Court does find them admissible under People v. Goldman, 35 NY3d 582 (2020). They are offered to show the respondent behaving in a particular way, not the truth of anything that anyone said; there is thus no need to authenticate that the recordings are complete and unaltered, which the witness who laid the foundation could not do. All she did, and all she needed to do, was identify the respondent's voice, and he himself conceded it is his. Of course, without more, it is unknown when exactly the recordings were made and under what circumstances, or even who the intended recipient was. And all of that thus goes to weight, not admissibility.

Here, based on the totality of the record, the Court finds that Mr. V. did not neglect Armani under any of the three theories alleged by ACS.

First, regarding excessive corporal punishment, the only evidence offered was the testimony of Ms. F. during her direct examination. However, Ms. F. recanted that story during her cross-examination and re-direct examination. Clearly, the relationship between Ms. F. and Mr. V. is complicated and the Court cannot surmise what might have led to her change in story. However, there is simply insufficient evidence to establish that Mr. V. inflicted excessive corporal punishment on Armani. Most of Ms. F. testimony consisted of Armani's out-of-court statements. Her own initial claim of having suffered corporal punishment from Mr. V. years earlier when she was a minor living with him — later recanted — is not enough to corroborate those statements.

Second, regarding education neglect, the Court fully credits Ms. Levine's testimony. The Court notes that for many students in New York City and throughout the United States, the 2020-21 school year was a struggle due to COVID and the remote education plans at most schools. Armani was not alone in being challenged by the social conditions around remote schooling. Unquestionably, Mr. V. could have done more to ensure that he was connected to the internet and to his remote classroom, by taking advantage of the mobile hotspots being offered by the school free of charge. However, as Ms. Levine testified, Mr. V. was within his rights to opt Armani out of his special education services due to their virtual nature, and the school also had challenges with keeping accurate attendance records during the remote schooling period. Moreover, Armani ultimately attended school in person starting in May 2021, whereupon he passed all his classes except for art. There is no evidence in the record that the school encouraged Mr. V. to switch Armani to in-person learning prior to that time. The Court finds that part of the school district's obligations to ameliorate education neglect, as defined by Family Court Act section 1012(f)(1)(A), is to encourage a family struggling with remote schooling to switch to in-person. In any event, ACS stepped in and encouraged the switch, so with or without the child's removal in this case, it does appear that he would have ultimately attended school in person, where he succeeded. Thus, ACS has failed to establish the impairment prong of the neglect statute.

Finally, regarding bizarre behavior by Mr. V., alleged by ACS to have put Armani at risk, the Court finds the evidence insufficient to establish neglect under the law, despite fully crediting Ms. Slowe-Richards's testimony and despite rejecting respondent's non-credible assertion that his identity was stolen and the voice recordings were deep fakes. His threats towards his nieces and nephew Louie were distasteful, but they were so outlandish as to be not credible. They appear to be perfectly within the protected zone of the First Amendment, as they were not backed up by any particular actions on Mr. V.'s part. See, e.g., U.S. v. Valle, 807 F.3d 508, 520-22 (2d Cir. 2015) (finding no criminal intent where alleged plot was "fantastical"). Clearly, Mr. V. was also very angry at ACS. There were multiple investigations of him and his home, including at least one that should have been screened out by the State Central Registry and not assigned for investigation (alleging that the home was "freezing cold" in the middle of April).

Mr. V. used derogatory language towards ACS workers, in front of Armani, who mimicked his uncle's belligerent style of communication and styled himself a gangster-in-training. The Court rejects Mr. V.'s claim that he does not use derogatory language in front of Armani as being not credible. Cultivating a minimum degree of respect for authority is a basic parenting duty. However, teaching children to stand up for their rights and to protest government action they disagree with is not unreasonable. There is a large range of acceptable parenting when it comes to the development of the child's civic responsibilities. Critically, as Ms. Slow-Richards testified, though Mr. V. was very angry when Armani was removed with police assistance in April 2021, Armani himself agreed to walk out without much of a fuss. Had he done more than use inappropriate language, the outcome here might have been different, but these were not the Branch Davidians, and this is not a family where the child was being taught to respond violently to law enforcement or otherwise take basic First Amendment rights to an unreasonable, unlawful extreme. That most people might find Mr. V.'s behavior to be offensive and wrong does not mean he neglected Armani.

No evidence was offered that Mr. V. has a documented history of mental illness or psychiatric problems. The Court notes that the initial allegations in the petition included an assertion that Mr. V. was abusing prescribed oxycodone. No evidence was presented in support of this claim either. It may be that much of his bizarre behavior could have been attributable to substance misuse, but the record does not establish this fact.

The Court further notes that the allegations contained in an unsworn ACS report dated June 28, 2021, were never made part of this fact-finding record. They are deeply troubling, but the Court assumes that ACS more fully vetted them subsequent to the report's submission and determined them to be unfounded.

Finally, the Court notes that ACS never alleged that Mr. V. neglected Armani by allowing Ramona V. to live in the family home at a time that she was prohibited by court order from being there.

Petition dismissed with prejudice; all prior orders vacated.

Enforcement of this order is hereby stayed until 3pm on Friday, September 2, 2022."