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Matter of Unborn Baby B., Family Court,
Judge Barone (p. 27, col.1)

New York Law Journal
Friday, July 15, 1988
Judge Barone

MATTER OF UNBORN BABY B. (A Child Under 18 Years of Age Alleged to be Neglected by Deborah B.)— The Commissioner of Social Services of Westchester County has filed a neglect petition against Deborah B. on behalf of her unborn child, alleging that seven other children of the Respondent have been removed because of the neglect or abuse of Respondent and, thus, the unborn child is likewise in imminent danger of being abused or neglected.

Simultaneously, with the filing of the neglect petition, the Law Guardian filed a memorandum in support therefore, requesting that immediately after birth the child be removed from the Respondent's care. The Law Guardian also requested a Temporary Order of Protection on behalf of the unborn, prohibiting the Respondent from leaving the Court's jurisdiction and requiring her to inform the Department of Social Services of her whereabouts on a weekly basis.

Counsel for the County, Respondent's attorney, and the Law Guardian have each been given an opportunity to submit memorandums of law on the issue of neglect. It was further agreed that, if the Court found that the child in utero would be in danger after its birth, there would be no need for a fact-finding hearing of the issue of neglect, but that the matter would proceed directly to a dispositional hearing.

The Respondent's seven other children have each been in care for the greater part of their lives. Prior to June 6, 1988 four of those children had been freed for adoption. The whereabouts of one child, Debbie B., is not known, so her status is in limbo.

As to Raymond H. and Jeffrey H. guardianship petitions were filed and the disposition provided an opportunity for the Respondent to comply with counseling programs, visit with the children, and engage in parenting-skills programs with the intention of returning these two children to the Respondent.

On June 6, 1988, in open Court, the Respondent relinquished all parental rights to Jeffrey and Raymond, stating that, although she tried, she is unable to care for the children. Thus raising the total to six (6) of her seven (7) children now freed for adoption.

Respondent's counsel stated that "six children were simply too many for the Respondent to adequately care for under the circumstances of receiving public assistance, living in temporary housing, and being unable to obtain employment due to her living arrangement," thus, she relinquished her parental rights. But, now with only one child to care for, she will be able to apply all the knowledge she has repeatedly digested from the numerous programs she has attended and thus be a good mother.

It should be noted that Respondent has not had custody of any of her children since 1984. That as recent as 1987, it was agreed that, while two of her children were in care, she would merely visit with them, not be responsible for their day-to-day care, in an attempt to fortify her relationship with them. And what was her response: "they are too much for me" and she surrendered her parental rights.

Counsel suggests that we use this new child as a test case. "Respondent is presented with the opportunity to start fresh with a new baby, one whom she can care for utilizing all the skills which she has learned over the years. Most importantly the Respondent can do all these things without the pressure of having to care for several children all at the same time." Respondent has not had the "pressure" of caring for any of her children over the last four years. She admitted abusing one child in 1977, and in 1984 she neglected six others; by 1988 her parental rights to all six had been surrendered.

The factual situation is not in dispute. But what of the legal issue? Can the court adjudicate an unborn child neglected based upon the prior acts of abuse and neglect of the Respondent parent?

The language of FCA section 1046(a)(1) is quite clear:

"(1) proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, Respondent." The cases are legion in support of this section: In re Hawkins 76 2nd 738; Matter of Terry S, 55 AD 2nd 689; Matter of Cruz, 121 AD 2nd 901, In re Baby Boy Santos, 71 Misc, 2nd 789.

However, Respondent's past acts of neglect or abuse are not sufficient in and of themselves to find against her as to this new child. But whereas the Law Guardian points out, there is no "showing of rehabilitation of Respondent or change in circumstances," then the Court may accept the evidence of the past acts as prima facie evidence of the future risk to the unborn child.

Has the Respondent's condition changed? She is still on public assistance, still living in temporary housing, formed a liaison giving rise to the child in question, with a suspected crack abuser, still unemployed and, as recently as June 1988, stated that she was unable to care for the last two of her seven children.

What has the Respondent done to rebut the presumption that the child in utero will not be in danger of neglect? Apparently nothing. With all her years of therapy, counseling, and programs she is still not capable of caring for a child by her own admission.

This child is to be born under the same circumstances as the prior seven. Respondent has not improved her situation by one iota, in spite of the numerous programs and diligent assistance extended to her by the Department of Social Services.

In this particular case, Respondent's past acts of abuse and repeated neglect, and her failure to improve her lot establish a prima facie case or a finding that the child in utero is at risk of being neglected.

The court's primary concern is the safety and well being of the unborn child. To submit the child to a "trial period" with its mother in the hope that it will not be harmed is not a chance that this court wishes to take. If this court errs, it will be on the side of safety.

It is, therefore, the finding of this court, based upon the facts presented, that the child in utero is a neglected child. Furthermore, the child is to be removed from the care of its mother immediately upon its birth and be placed in the care and custody of the Department of Social Services pending an immediate dispositional hearing, at which time the Respondent will have an opportunity to present evidence of her ability to parent the Child.

The County attorney will submit an order of fact-finding on notice to all counsel.

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