Opinion
2013-04-16
In re AARON C., A Child Under Eighteen Years of Age, etc., Grace C., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Michael S. Bromberg, Sag Harbor, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.
Michael S. Bromberg, Sag Harbor, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.
MAZZARELLI, J.P., DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, CLARK, JJ.
Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about November 4, 2011, which, to the extent appealed from as limited by the briefs, after a fact-finding hearing, found that respondent-appellant mother had neglected the subject child, unanimously affirmed, without costs. Appeal from order of disposition, same court and Judge, entered on or about March 20, 2012, upon the mother's default, unanimously dismissed, without costs, as taken from a nonappealable paper. Order, same court and Judge, entered on or about April 23, 2012, which denied the mother's petition for modification of the order of disposition, unanimously affirmed, without costs.
The finding of neglect is supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ). The record shows that, despite evidence of the father's untreated mental illness and aggressive and violent behavior towards the mother and others, the mother refused domestic violence services and would allow the father to have primary decision-making responsibility for the child's care, placing the child in imminent danger of impairment ( seeFamily Ct. Act § 1012[f][i][B]; see also Matter of Angelique L., 42 A.D.3d 569, 572, 840 N.Y.S.2d 811 [2d Dept. 2007];Matter of Alaina E., 33 A.D.3d 1084, 1086, 823 N.Y.S.2d 227 [3d Dept. 2006] ). Although the mother denied that she had told anyone that she was frightened of the father and that he had abused her verbally, financially and physically, the court determined that her testimony was incredible, and its credibility assessment should be given deference ( see Matter of Daquan D., 18 A.D.3d 363, 364, 795 N.Y.S.2d 552 [1st Dept. 2005] ).
The court properly granted petitioner agency's motion to amend the petition to conform to the evidence. The record demonstrates that the mother had ample notice of the new allegations and an opportunity to respond ( see Matter of Madison H. [Demezz H.–Tabitha A.], 99 A.D.3d 475, 476, 952 N.Y.S.2d 124 [1st Dept. 2012] ). Given the efforts of the court to ensure that the mother had enough time to defend against the new allegations, her contention that the court was biased is not supported by the record.
To the extent the mother appeals from the order of disposition, no appeal lies from an order entered on default ( see Matter of Lisa Marie Ann L. [Melissa L.], 91 A.D.3d 524, 525, 936 N.Y.S.2d 542 [1st Dept. 2012] ). Contrary to the mother's contention, she defaulted at the dispositional hearing upon her unexplained failure to appear ( see Matter of Natalie Maria D. [Miguel D.], 73 A.D.3d 536, 537, 901 N.Y.S.2d 225 [1st Dept. 2010] ). Although her attorney was present for the dispositional hearing, she had no explanation as to why the mother was not present and did not state that she was authorized to proceed in the mother's absence ( cf. Matter of Bradley M.M. [Michael M.–Cindy M.], 98 A.D.3d 1257, 1258, 951 N.Y.S.2d 604 [4th Dept. 2012] ). There is no basis for vacating the default ( see Matter of Lisa Marie Ann L., 91 A.D.3d at 525, 936 N.Y.S.2d 542).