Justice Must Always Be Served.

As a trial attorney, I defended persons accused of wrong doing, and fought to ensure the Courts held the government's feet to the fire. As an Administrative Law Judge, I ensure that the law is applied fairly among all parties. 

While it has been well over a year that I have been out of private practice, I continue to search for the cases I appealed to determine their outcome. At trial, you do everything you can to preserve the record to ensure all of your clients' rights and options are available for appeal. My client did not receive the result he was entitled to under the law in the trial court. So we appealed.

And he won.

I am tremendously proud that those efforts, the sleepless nights, and the fight for the forgotten, yet again, were not in vain. 

The link to the decision is here: 

https://www.nycourts.gov/courts/ad4/clerk/decisions/2017/09-29-17/PDF/1018.pdf

The closing arguments I submitted and the memorandum of law I included with those arguments (names and docket number changed), follows:

FAMILY COURT OF THE STATE OF NEW YORK 

COUNTY OF ERIE

_______________________________________________________

In the Matter of Samuel  Jones

Docket No.: NN-7777-14

A Child under Eighteen Years of Age Respondent’s

Alleged to by Neglected By Supporting Post-Trial Memo of Law

Bart Smith .

_______________________________________________________

This written closing statement is offered to the Court on the heels of a Neglect trial whereupon three (3) witnesses were heard. This matter came before this Court following an arrest of Ms. Sarah Jones and Mr. Smith in Ms. Jones’s home.  

It is undisputed that Mr. Smith is not the biological parent to the child, Samuel . What is in dispute is whether Mr. Smith is the ‘parent substitute” for the child, Samuel . Mr. Smith has maintained that he is not. The Government, through the Department of Social Services, had not provided a scintilla of evidence that he is. The petition against him must be dismissed.

What resounds most clearly about the Government’s case is not what evidence they presented, but what evidence they did not present. What we did not hear is any testimony whatsoever from the mother of the child, Samuel . We heard no one with actual knowledge testify that Mr. Smith is the parent substitute of this child or that they ever resided together. We have not heard that my client attempted, at any time, to have access with this child during the pendency of these proceedings. We have not heard from anyone that my client provided any child care, babysitting supervision or financial, emotional or other support for the child, Samuel at any time, at any point, ever. Not food. Not diapers. Not a Christmas gift. Not a birthday gift.  

Nothing. 

We haven’t heard about it because it didn’t happen. The proof has shown that Government’s allegations that my client had assumed any sort of parental role for this child have no basis in reality.  

We did hear that my client knew Ms. Jones since, “back in the day” when they were kids. We did hear that they ran into each other on the street and were observed together. We heard that this happened because they live down the street from each other.  We heard that they communicated about court dates when Mr. Smith didn’t have a phone as, being co-respondents, their court appearances were scheduled for the same time. We haven’t heard from anyone with any actual knowledge of my client’s living arrangements, except for my client-who testified that he resides with and has resided with his mother in the same neighborhood as Ms. Jones. We heard that my client is a parent to a child-a child who resides with him that he provides supervision, financial support, care and emotional support for.  

We heard that that child is not Samuel Jones.

It isn’t enough to be taken aback by the allegations in the Government’s petition regarding controlled substances. Curiously, at trial, the Government didn’t bother to offer any proof whatsoever that items found in the home of Ms. Jones were actually controlled substances or that they belonged to my client or were at anytime under my client’s care and control. It isn’t enough to be taken aback by the fact that my client was arrested. What is telling is that the Government had no knowledge of what the outcome of that arrest was. The fact is, the Government didn’t provide that proof because the Government didn’t have any proof that following that arrest my client was actually convicted of anything whatsoever. 

The only issue before this Court is whether my client was the parent substitute for the child Samuel . The petition against Mr. Smith makes the threadbare and legally conclusory claim that he is. The Government hasn’t been able to demonstrate that in any way. As such, the petition against him must be dismissed.

FAMILY COURT OF THE STATE OF NEW YORK 

COUNTY OF ERIE

_______________________________________________________

In the Matter of Samuel  Jones

Docket No.: NN-7777-14

A Child under Eighteen Years of Age Respondent’s

Alleged to by Neglected By Supporting Post-Trial Memo of Law

Bart Smith .

_______________________________________________________

Matter of Karr (66 Misc 2d 912). held that, ”It is axiomatic in the law of neglect that the parent sought to be charged with neglect must have custody, care and control of the child during the period when neglect charges are alleged against the parent." There has been absolutely nothing in the record that supports that Mr. Smith had ‘custody, care or control’ of the child. Quite the opposite. 

The primary purpose of article 10 proceedings, therefore, is to protect children from abuse and neglect. (People v Kenyon, 46 AD2d 409, 412.) These proceedings are civil in nature (Matter of Diane B., 96 Misc 2d 798, 800), and are to be clearly distinguished in purpose and intent from criminal actions. They are not designed to punish offenders for acts against their victims [emphasis added], but to protect their victims from further harm, and their protection from harm caused by persons whose responsibility for said children is based on some de jure or de facto parental relationship with them. (People v Webb, 52 AD2d 8, 10.)  

Subdivision (a) of section 1012 of the Family Court Act must therefore be interpreted to include within the definition of "respondent" any person whose relationship to the subject child is parental in nature and who is alleged to have committed acts of abuse or neglect against said child. The words "parent or other person legally responsible", which appear in subdivisions (a), (e), and (f) (paragraph [i]) of section 1012 must be read to mean a parent or one acting in loco parentis. (See Matter of Children Alleged to be Neglected, 76 Misc 2d 987, 989; Matter of Yvette R., 61 Misc 2d 20, 21-22.) Subdivision (g) of section 1012, which defines "person legally responsible", thus clarifies and explains who might be included under the title in loco parentis, or, in the words of the statute, "other person legally responsible". "In 1972, the Legislature broadened the concept of a `person legally responsible' to pull within its net persons continually or regularly found in the same household as the child. (L 1972, ch 1015, § 2.) We heard testimony that the parties were seen in the street together sometimes, that they grew up in the same neighborhood. We heard that Mr. Smith lived with his mother down the street from the co-respondent. We haven’t heard from anyone that Mr. Smith resided with or spent the night with the co-respondent. 

A proper respondent in an article 10 proceeding may only be a parent or some other person acting in a parental capacity, as defined by subdivision (g) of section 1012 of the Family Court Act.

The court should be cognizant of language in the cases similar to that which follows: "Once the petitioner has established the existence of injuries sustained by the child which are substantial in character while the child was in the lawful custody of his parents…then petitioner is deemed to have established a prima facie case" (Matter of Young, 50 Misc 2d 271, 273; emphasis added). The evidence clearly shows that the child was never in the lawful custody of my client, never alone with my client, and never provided for by my client. The evidence does show that my client does have a child that he cares for, lives with, and shares custody of. 

The Department’s petition must fail.

Respectfully,

Jennifer P Stergion, Esq.

Attorney for the Respondent

500 Amherst Street

Buffalo, NY 14207

Telephone: 716.536.5971