Opinion
2011-09-29
In re NAOMI S., A Dependent Child Under Eighteen Years of Age, etc., Hadar S., Respondent–Appellant,Commissioner of Social Services of the City of New York, Petitioner–Respondent.In re Uriel S., Petitioner–Respondent, v. Hadar S., Respondent–Appellant,Administration for Children's Services of the City of New York, Respondent.
Louise Belulovich, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for municipal respondent.
Louise Belulovich, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for municipal respondent. Benjamin Haber, Staten Island, for Uriel S., respondent.Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.ANDRIAS, J.P., FRIEDMAN, FREEDMAN, RICHTER, ROMÁN, JJ.
Order of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on or about November 30, 2009, which, upon denial of respondent mother's application to dismiss the neglect petition pursuant to Family Court Act § 1051(c) and a fact-finding determination that the mother neglected the subject child, among other things, released the subject child to the custody of non-respondent father, and order, same court and Judge, entered on or about November 9, 2009, which, to the extent appealed from as limited by the briefs, awarded custody of the child to the father, unanimously affirmed, without costs. Appeal from orders, same court and Judge, entered on or about February 2, 2010, which to the extent appealed from as limited by the briefs, set forth a visitation schedule for respondent mother, unanimously dismissed, without costs, as taken from a non-appealable order. Order, same court and Judge, entered on or about February 16, 2010, which, to the extend appealed from as limited by the briefs, modified the February 2, 2010 order and set forth certain travel and relocation conditions for petitioner father, unanimously affirmed, without costs. Order, same court and Judge, entered on or about April 8, 2010, which granted respondent father's motion to dismiss the mother's petition to modify the visitation orders, unanimously affirmed, without costs.
A preponderance of the evidence supports Family Court's finding that the child's physical, mental or emotional condition was in imminent danger of becoming impaired as a result of the mother's long-standing history of mental illness and resistance to treatment ( see Family Ct. Act §§ 1046[b][i], 1012[f][i][B]; Matter of Madeline R., 214 A.D.2d 445, 625 N.Y.S.2d 512 [1995] ). The mother testified to multiple extended hospitalizations for mental illness, and the record showed her lack of insight into her illness and her repeated relapses due to noncompliance with treatment and medication ( see Matter of Christopher R. [Lecrieg B.B.], 78 A.D.3d 586, 586–587, 912 N.Y.S.2d 43 [2010] ). Family Court also properly denied the mother's motion to dismiss the neglect petition pursuant to Family Ct. Act § 1051(c), since the dangers the mother posed to the child had not passed and thus the court's continued aid was required ( cf. Matter of Eustace B. [Shondella M.], 76 A.D.3d 428, 428, 906 N.Y.S.2d 229 [2010] ).
The totality of the circumstances establishes that the award of custody of the child to her father was in the best interests of the child ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). The evidence at the consolidated hearing on the disposition of the neglect petition and the father's custody petition showed that the mother was incapable of caring for the child and continued to have a lack of insight about her illness, and that the child is doing well while living with her father.
Because the February 2, 2010 visitation order was entered on consent, it is not appealable ( see Matter of Reilly v. Reilly, 49 A.D.3d 883, 884, 853 N.Y.S.2d 900 [2008] ). Family Court did not abuse its discretion when it entered the February 16, 2010 visitation order, modifying the February 2, 2010 order, which set forth travel and relocation conditions for petitioner father.
Family Court properly dismissed, without a hearing, the mother's petition to modify the visitation orders. The mother failed to make an evidentiary showing of changed circumstances sufficient to warrant a hearing ( see Matter of Rodriguez v. Hangartner, 59 A.D.3d 630, 631, 874 N.Y.S.2d 501 [2009] ).
We have considered the mother's remaining arguments and find them unavailing.
The Decision and Order of this Court entered herein on May 19, 2011 is hereby recalled and vacated ( see M–2709 decided simultaneously herewith).