Opinion
2015-07-08
In the Matter of DAVID P. (Anonymous). Administration for Children's Services, respondent; Elisa P. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Kareem E. (Anonymous). Administration for Children's Services, respondent; Elisa P. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Abigail P. (Anonymous). Administration for Children's Services, respondent; Elisa P. (Anonymous), appellant. (Proceeding No. 3).
Amy Mulzer, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Karen M. Griffin, and Diana Lawless of counsel), for respondent.
Amy Mulzer, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Karen M. Griffin, and Diana Lawless of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Patricia Colella of counsel), attorney for the children David P. and Kareem E.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
Appeals from an order of fact-finding of the Family Court, Queens County (John M. Hunt, J.), dated May 8, 2013, and an order of disposition of that court (Mary R. O'Donoghue, J.), dated August 8, 2013. The order of fact-finding found that the mother neglected the child Kareem E. and derivatively neglected the child David P. The order of disposition, insofar as appealed from, released the child David P. to the mother with supervision by the Administration for Children's Services for a period of six months and placed the child Kareem E. in a residential treatment facility.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,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 so much of the order of disposition as placed the mother under the supervision of the Administration for Children's Services for a period of six months is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of disposition is modified, on the law, by vacating the provision thereof finding that the mother derivatively neglected the child David P.; as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, and the order of fact-finding is modified accordingly.
The appeal from so much of the order of disposition as placed the mother under the supervision of the Administration for Children's Services for a period of six months must be dismissed as academic, as that portion of the order expired by its own terms ( see Matter of Kaleb B. [Harold S.], 119 A.D.3d 780, 989 N.Y.S.2d 345; Matter of Joshua P. [David J.], 111 A.D.3d 836, 975 N.Y.S.2d 440).
“[S]ince an adjudication of abuse or neglect constitutes a permanent and significant stigma that might indirectly affect the appellant's status in future proceedings, the appeal from the remainder of the order of disposition, which brings up for review the findings of neglect and derivative neglect in the order of fact-finding” dated May 8, 2013, is not academic (Matter of Cheryale B., 121 A.D.3d 976, 977, 995 N.Y.S.2d 135 [internal quotation marks omitted]; see Matter of Monica C.M. [Arnold A.], 107 A.D.3d 996, 997, 968 N.Y.S.2d 143).
The petitioner established, by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ), that the mother's conduct with respect to the child Kareem E. impaired his mental or emotional well-being, or placed him in imminent danger of such impairment ( seeFamily Ct. Act § 1012[f]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Kevin M.H. [Kenneth H.], 76 A.D.3d 1015, 908 N.Y.S.2d 109). Accordingly, the Family Court's determination that the mother neglected Kareem E. was supported by a preponderance of the evidence, and will not be disturbed ( see Matter of Monica C.M. [Arnold A.], 107 A.D.3d at 997, 968 N.Y.S.2d 143; Matter of Justin J., 25 A.D.3d 1031, 1033, 808 N.Y.S.2d 497).
“Although Family Court Act § 1046(a)(i) allows evidence of abuse or neglect of one sibling to be considered in determining whether other children in the household were abused or neglected, the statute does not mandate a finding of derivative neglect” ( Matter of Padmine M. [Sandra M.], 84 A.D.3d 806, 807, 922 N.Y.S.2d 527 [citations omitted] ). “The focus of the inquiry required to determine whether derivative neglect has occurred is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood” ( matter of anastaSia l.–d. [RONALD D.], 113 a.D.3D 685, 687, 978 n.y.s.2d 347). Under the circumstances of this case, the preponderance of the evidence did not support a finding of derivative neglect with respect to the child David P. ( see Matter of Padmine M. [Sandra M.], 84 A.D.3d at 807, 922 N.Y.S.2d 527; Matter of Andrew B.–L., 43 A.D.3d 1046, 1047–1048, 844 N.Y.S.2d 337).
The mother's remaining contentions are without merit.