May 6, 2019

A Cup of Joe | Bad Boyfriend Equals Bad Mom? Child Protection Law Update

This week’s case takes us up to Sullivan County, which starts about 70 miles northwest of New York City. Some just refer to it as the Catskill Mountains. From August 15–18, 1969, about 500,000 people gathered in Sullivan County's Town of Bethel at Max Yasgur's farm to attend the Woodstock Festival. The entertainers included The Who; the Grateful DeadJefferson AirplaneJanis JoplinSantanaJimi Hendrix; and Richie Havens.  But this case is not about music.

This is a case – like many cases – about relationships.  

Enter:  Kim, a young single mother; Joseph, her little 4-year old boy; Kim’s boyfriend, Dilph; Kim’s mother, Becky; and Kim’s older daughter, Lisa, who lives with her grandmother, Becky.

Kim and Joseph lived with Kim's boyfriend, Dilph. One early evening in March, the 3 of them were all at home, Kim and Dilph were in their room and little Joe was in his room in a “pack and play.” (The people who went to Woodstock, and their cohorts, called that a “play pen.”).

Out of the blue, Kim and Dilph began arguing heatedly. Dilph berated the young mother, called her names and the he began punching her and violently kicking her. Kim went into the little Joe's room to retrieve a hidden cell phone; she called 911 and left the line open but the phone hidden. Dilph was now being recorded as he continued to yell. He then followed Kim into the child's room, picked up the little Joe, who was now crying hysterically, and threw the baby back into the pack and play, yelling at him to "SHUT THE F*CK UP!" Dilph, now in a rage, grabbed a piece of plastic child's furniture and threw it at the cowering young mother, which bounced and hit little Joe. The police arrived, and Dilph was arrested. Little Joe and his mother were taken to the hospital and treated for multiple bruises and a laceration.

As a result of that incident, a temporary order of protection was issued that directed Dilph to stay away from Kim and Joseph.

A month later, and in violation of the order of protection, Kim, Dilph , and Joe attended a birthday party at the child's grandmother's (Becky) house, where Lisa – Kim’s older daughter – also lived.  After the party, Kim, Dilph, and Joe stayed overnight at Becky and Lisa’s house.

The next day, Kim and Dilph began fighting.  Lisa called the police and Kim was later arrested for endangering the welfare of a child. The Department of Family Services commenced a proceeding alleging that Kim neglected the child. At the trial, the grandmother testified:

Testimony of Grandmother:

Q: Let me bring you to the incident in May when everyone was at your house. Why was everyone there?

A: It was a birthday party for Lisa, my daughter Kim's older child. Lisa wanted her mother to be there, so I asked Kim if she could bring Joseph to the party.

Q: And what did Kim say in response to that?

A: She asked if Dilph could also come.

Q: What did you say?

A: I said, well there’s that protection order that says that Dilph can’t come near you or the baby.

Q: What did Kim say?

A: She said it was not a problem and that Dilph had been very sweet to her and the baby. So, I figured as long as Kim approved that it would be okay for Dilph to come to the party.

Q: Did anything eventful happen at the party?

A: No not the day of the party. But it was getting late and Kim asked me if it was okay for the 3 of them to stay the night.

Q: What did you tell her?

A: Well, I have the room there for them, so I said it was okay.

Q: So they stayed at your house overnight.

A: Yes, sir, they did.

Q: Let me bring you to the next morning: What time did you wake up?

A: It was about 8:30 in the morning. I woke up because I heard yelling coming from downstairs. And I heard the baby crying.

Q: Who was yelling?

A: Kim and Dilph.

Q: What did you hear?

A: I heard Kim yell, "ow . . . you're hurting me. Let go."

Q: What did you do next?

A: I went downstairs and saw Kim and Dilph like wrestling in the living room and I saw Joseph alone, sitting on top of the kitchen table.

Q: Then what happened?

A: Lisa, heard everything, too, so she called the police. They came real quick and they took Dilph away in handcuffs. The baby was crying real bad, but then everything quieted down after that.

Two days later, the mother was charged with endangering the welfare of a child, and an order of protection was issued prohibiting the mother from having contact with the child.

The Ruling

The judge of the Family Court found that Kim failed to exercise a minimum degree of care to protect her child from imminent harm. Kim was found guilty of neglect.

Kim filed an appeal. Kim did not contest the factual basis for the ruling, but instead argued that the proof demonstrated bad parenting, not neglect.

The appeals court did not agree with Kim. The court stated: “When the mother invited the boyfriend to the birthday party in contravention of the order of protection, she willingly exposed the child to the imminent danger of harm. Consistent with the history between the mother and the boyfriend, the two disregarded the child as they argued loudly, the argument became physical and police intervention was necessary.”

Kim loses and will have to attend many classes and undergo monitoring for a long time. Dilph is homeless and lives in a car.

Happy Mother’s Day

Here’s the Case: http://www.courts.state.ny.us/reporter/3dseries/2019/2019_03416.htm

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