Opinion
17325-, 17325A Dkt. Nos. NN-17856/17, NN-17857/17 Case No. 2021–03766
02-14-2023
In the MATTER OF MALIA A. and Another, Children Under Eighteen Years of Age, etc., Dwayne T.M., Respondent–Appellant, Shaguira M.B., Respondent, v. Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Karin Wolfe of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the children.
Steven N. Feinman, White Plains, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Karin Wolfe of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the children.
Acosta, P.J., Webber, Friedman, Kennedy, Higgitt, JJ.
Order of fact-finding, Family Court, Bronx County (Gilbert A. Taylor, J.), entered on or about August 26, 2019, which, to the extent appealed from, after a fact-finding hearing, determined that respondent father neglected the subject children, unanimously affirmed, without costs. Appeal from order of disposition, same court (Ashley B. Black, J.), entered on or about July 15, 2021, unanimously dismissed, without costs, as taken from a nonappealable order.
The court erred in making a finding of neglect based on the father's mental illness, as this basis for neglect was not alleged in the petition, and the father was not given notice or an opportunity to respond before the court sua sponte amended the allegations to conform to the proof (see Family Ct Act § 1051[b] ; Matter of Vallery P. [Jondalla P.], 106 A.D.3d 575, 575, 967 N.Y.S.2d 13 [1st Dept. 2013] ). Nevertheless, a finding of neglect was warranted, as the allegations in the petition were supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][A], [B] ; 1046[b][i]).
The credible testimony of the officer who responded to the mother's 911 call established that the children were subjected to actual or imminent danger of physical or emotional impairment as a result of their exposure to the father's acts of domestic violence where the father acted aggressively toward the mother in the presence of the children and, when the police proceeded to arrest him, held one of the children in the air by the child's arm for approximately five minutes, while using the child as a human shield in an attempt to avoid arrest (see Family Ct Act § 1012[f][i] ; Matter of Andru G. [Jasmine C.], 156 A.D.3d 456, 457, 64 N.Y.S.3d 886 [1st Dept. 2017] ; Matter of Madison M. [Nathan M.], 123 A.D.3d 616, 617, 999 N.Y.S.2d 70 [1st Dept. 2014] ). A single incident of domestic violence is sufficient to establish neglect (see Matter of Jaiden M. [Jeffrey R.], 165 A.D.3d 571, 572, 87 N.Y.S.3d 166 [1st Dept. 2018] ). The child protective specialist's observations of unsanitary conditions and lack of electricity and food in the apartment during an unrelated visit further supported the finding of neglect (see Matter of Qualiayah J. [Taneka J.], 149 A.D.3d 495, 496, 52 N.Y.S.3d 95 [1st Dept. 2017], lv denied 29 N.Y.3d 913, 2017 WL 2682626 [2017] ; Matter of Alex R. [Maria R.], 81 A.D.3d 463, 463, 915 N.Y.S.2d 568 [1st Dept. 2011] ).
The father's appeal from the dispositional order is dismissed, as no appeal lies from an order entered on consent (see Matter of Shaniyah D.C. [Olivia C.], 143 A.D.3d 608, 608, 39 N.Y.S.3d 756 [1st Dept. 2016] ).