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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT In the Matter of Winona P. (Anonymous). Suffolk County Department of Social Services, Petitioner-Respondent; Winona P.(Anonymous), Appellant; Paul P. (Anonymous), nonparty-Respondent Appellate Div. No. 2010-06768 2010-06769

(Fam. Ct. Docket No. NN-16863-09)

APPELLANT'S MEMORANDUM OF LAW

Gina M, Scelta, Esq. Attorney for Appellant P.O. Box 407 Centerport, NY11721 631-327-6196

TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES PRELIMINARY STATEMENT ISSUES ON APPEAL HISTORY OF THE CASE ARGUMENTS I Did the lower Court, err when it issued its June 23, 2010 Order of Protection? i 1 2 3 11

11

II

Did the Court, in its June 23 Order, finding Appellant to be neglectful by a preponderance of the evidence? 12 20 ii

CONCLUSION STATEMENT UNDER CPLR 5531 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR 670.10.3(f) APPENDIX NOTICE OF APPEAL ORDER SUBPOENA CERTIFICATION OF APPENDIX (2)

iv. a-1 a-2 a-3 b-1

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TABLE OF CASES AND AUTHORITIES Cases

In In Re "Female" C N.Y.S.2d , 2008 WL 4491822, N.Y.A.D. 2 Dept., 2008 Matter of BrandiU., 47 A.D. 3d 1103, 1104 (2008) Matter of Joyce T., 65 NY2d 39,47 Matter of Nathaniel TT., 265 A.D.2d 611,614 Matter of Sheila G., 61 NY2d 368 Matter of Star Leslie W., 63 NY2d 136 Nicholson v. Scoppetta, 2 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840(2004)

Santoskv v. Kramer 455 US 745 (1982)

Family Court Act 1012(f) (B) Social Services Law 384-b (7)(a)

PRELIMINARY STATEMENT

Appellant, Winona P. (Appellant), by her undersigned attorney, Gina M. Scelta, appeals hereby to the Supreme Court of the State of New York, Second Department, from the Orders of the Honorable James F. Quinn, both dated June 23, 2010, and from each and every part, by which she is aggrieved, as well as the whole therefrom.

1.

ISSUES ON APPEAL

I.

Did the lower Court, err when it issued its June 23, 2010 Order of Protection?

II.

Did the Court, in its June 23 Order, finding Appellant to be neglectful by a preponderance of the evidence?

2.

HISTORY OF THE CASE

On September 17, 2009, the Suffolk County Department of Social Services filed a petition in Family Court, Suffolk County, requesting the Court issue an order determining that the child Winona Piscitelli to be neglected by her mother Winona Palmiotti, pursuant to Section 1012 of the Family Court Act. The petition alleged that Appellant placed the child in imminent risk of becoming physically, mentally or emotionally impaired as a result of respondent's history of Child Protective Services involvement and evading CPS in both New York and Ohio and by failing to ensure the child received proper medical care and services due to developmental delays and refusing to accept services for either herself or the child. A trial was held before the Honorable James F. Quinn, Family Court Judge. The hearing began on March 1, 2010 and proceeded over time to its conclusion on May 20, 2010.

The child, Winona Piscitelli was born on July 6, 2005 to Winona Palmiotti and Paul Piscitelli. At the time of their child's birth, Winona Palmiotti and Paul Piscitelli were residing together with Mr. Piscitelli's mother in Westbury, New3.

York. Shortly before the child's first birthday, Appellant left with the child, eventually coming to reside in the state of Ohio in 2008. During this time Appellant had contact with the child's father, but testimony will show that the father never attempted to petition the courts for custody of the child, nor did he attempt to get visitation rights through the court. Appellant testified to the child's health and well being of the child, all ordinary until a burn incident that occurred. The court, in its Decision, makes issue of the fact that the child's immunizations may not have been up to date, however, it is many parents prerogative to not have their children immunized due to certain health risks associated with said immunizations. Furthermore, the court does not make any reference to anything negative with regards to the child's health records. When the child was approximately three years six months old, she suffered burns on her hands when she accidentally fell into a neighbor's fire pit. Appellant rushed her daughter to the hospital and the child was treated there and then at a burn facility. However, due to this incident, Ohio's Social Services started an investigation. Appellant and her daughter left Ohio sometime after the child was treated and traveled back to New York.4.

Due to the move from Ohio to New York an emergency removal hearing was held on September 18, 2009 and the child was removed from the mother's custody and placed in the custody of the Department of Social Services. An order of protection was also issued at the time, prohibiting the mother from seeing her child, other than certain scheduled, supervised visitation. The neglect hearing commenced in March, 2010.

After coming back to New York and in August, 2009, Appellant applied to the County for services for herself and her daughter. At the hearing, much attention was given to the meeting between Appellant and the DSS supervisor, Lisa Vadagliacca. Ms. Vadagliacca testified that she interviewed and observed Appellant and the child at the end of August, 2009. She observed the child acting out and being unruly. She also testified to Appellant's behavior, stating that Appellant seemed "short" with the child and pushing the child off onto another chair when the child attempted to climb onto her mother's lap. Much negative inference was given this testimony, despite the fact that parents are "short" with their children every now and then, especially in stressful situations, such as the one5.

where a parent is applying for emergency services. Being "short" with one's child certainly does not rise to the level of neglect, as defined by the law, or Webster's. Furthermore, moving the child to her own seat is also not unusual or abusive. Ms. Vadagliacca also testified that while at the Department, Appellant struck her daughter in the chest (Tr. 5/19/10 pg 17 at 16-20). However, when questioned about this incident, Ms. Vadagliacca testified that the mother was seated and the child was standing in front of her, with her back to Ms. Vadagliacca. She said that she saw the child grab her chest and step back (Tr. 5/19/10 pg 28 at 4-6). However, it must be noted and stressed that the child had her back to Ms. Vadagliacca; did the social worker infer that the child grabbed her chest? Certainly, with the child's back to her she could not have seen that movement. Also, Ms. Vadagliacca testified that the child took a step back after her mother allegedly punched her; again, is that the action of a four year old who was just punched in the chest by an adult? The child did not fall, the child did not stumble. Furthermore, there was no testimony that the child even cried out. Also of significance is the fact that no one came to the aid of this child who was just punched. The incident was eventually reported, but at the time, no one came to the aid of a child being "punched." Furthermore, the

6.

Department of Social Services allowed Appellant to leave with her daughter. Certainly, if it was believed that the child was in danger of harm by the mother, would they not have intervened and tried to protect the child? The incident was not reported to the State Central Registry for Child Abuse and Maltreatment until well after the fact. There was no physical inspection of the child to see if the alleged punch left any marks or bruises. It is indeed credible that the mother may have pushed the child with her hand. The testimony of Ms. Vadagliacca reeked of dislike for Appellant. She described her behavior as nasty and rude. There were angry words spoken. This negative attitude and acrimony by the social worker must be taken into consideration when considering Ms. Vadagliacca's testimony. At this hearing, Mr. Piscitelli, who testified that he is the child's biological father (though a paternity hearing was not held), spoke of the child's heavy weight (for her age), her inability to speak and of the fact that while with him, on an extended visit, the child was doing much better. However, during the time Appellant was taking care of her daughter, Mr. Piscitelli never petitioned the court for custody, he did not petition the court for visitation. Although he testified that he was concerned about her well being, he did not attempt to take the7.

child from her mother. Again, inferences as to why must be made. Perhaps the neglect that was alleged wasn't neglect, but merely a dislike for a Respondent who did not cower in the face of all that were opposing her. The behavior of the mother during the neglect hearing was controversial, but not a basis for neglect. During the trial, because Appellant believed her rights were being deprived and her child taken away from her, she acted out and actively participated in her own behalf. She interrupted court proceedings, and was removed from the courtroom one day, but that is evidence of high emotion, such as a neglect trial would induce, not proof of neglect. The court, in its findings also references Appellant's various motions filed by her without benefit of counsel. Motions that were denied. During the trial the County Attorney verbally requested to amend the petition on the basis that the mother's behavior was evidence that she could not properly care for the child. The request was granted by the Court. During the time the child was visiting with the Mr. Piscitelli, Appellant mother maintained visitation with her daughter, often traveling long distances just to see her child. The interactions between mother and

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