Opinion
2019-11873 2019-11875 Docket Nos. N-7824-17, N-7825-17
07-22-2020
In the MATTER OF Joseph BRUCE I. (Anonymous). Administration for Children's Services, respondent; v. Joseph A.I. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Nolan Alexander I. (Anonymous). Administration for Children's Services, respondent; v. Joseph A.I. (Anonymous), appellant. (Proceeding No. 2)
Peter Wilner, Jamaica, NY, for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Scott Shorr and Julia Bedell of counsel), for respondent. Laurie Gennusa, Jamaica, NY, attorney for the children.
Peter Wilner, Jamaica, NY, for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Scott Shorr and Julia Bedell of counsel), for respondent.
Laurie Gennusa, Jamaica, NY, attorney for the children.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In two related child neglect proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Queens County (Diane Costanzo, J.), dated May 8, 2019, and (2) an order of disposition of the same court dated July 25, 2019. The order of fact-finding, after a hearing, found that the father neglected the subject children. The order of disposition, after a hearing, and upon the father's failure to appear at the dispositional hearing, inter alia, released the children to the custody of the mother.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the appeal from the order of disposition is dismissed, without costs or disbursements, except with respect to matters which were the subject of contest (see CPLR 5511 ; Matter of Marchella P. [Loretta B.-B.], 137 A.D.3d 1286, 1287, 28 N.Y.S.3d 413 ); and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
Since the order of disposition appealed from was made upon the father's default, review is limited to matters which were the subject of contest in the Family Court (see Matter of Kieara N. [Shasha F.], 167 A.D.3d 620, 621, 89 N.Y.S.3d 232 ; Matter of Marchella P. [Loretta B.-B.], 137 A.D.3d at 1287, 28 N.Y.S.3d 413 ). Accordingly, on these appeals, review is limited to the Family Court's finding that the father neglected the subject children.
In 2017, the Administration for Children's Services (hereinafter ACS) filed neglect petitions against the father, alleging, inter alia, that he suffered from a mental illness which impaired his ability to care for the subject children. After a fact-finding hearing, the Family Court found that the father neglected the subject children as a result of, inter alia, his ongoing mental illness and failure to comply with recommended treatment and medication management. After a dispositional hearing, at which the father did not appear, the court, inter alia, released the children to the custody of the mother.
A neglected child is a child less than 18 years old "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent ... to exercise a minimum degree of care ... in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof" ( Family Ct. Act § 1012[f][i][B] ; see Matter of Geoffrey D. [Everton D.], 158 A.D.3d 758, 759, 71 N.Y.S.3d 556 ). "While parental neglect may be based on mental illness, proof of a parent's mental illness alone will not support a finding of neglect" ( Matter of Geoffrey D. [Everton D.], 158 A.D.3d at 759, 71 N.Y.S.3d 556 ). Rather, the petitioner must adduce evidence sufficient to "establish a causal connection between the parent's condition, and actual or potential harm to the [child]" ( Matter of Joseph A. [Fausat O.], 91 A.D.3d 638, 640, 937 N.Y.S.2d 250 ).
As the Family Court found, ACS established, by a preponderance of the evidence, that the father neglected the subject children (see Matter of Nialani T. [Elizabeth B.], 164 A.D.3d 1245, 1245–1246, 83 N.Y.S.3d 206 ). There was evidence in the record that the father lacked insight into his ongoing mental illness and the reasons for his psychiatric hospitalizations and that his refusal to cooperate with the prescribed treatment placed the children at imminent risk of harm. The court's credibility determinations were supported by the record and will not be disturbed (see Matter of Andrew B. [Deborah B.], 73 A.D.3d 1036, 900 N.Y.S.2d 661 ).
CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur.