Opinion
2014-06-4
In the Matter of WILLIAM N. (Anonymous), Jr. Commissioner of Administration for Children's Services of City of New York, appellant; Kimberly H. (Anonymous), respondent-respondent; William N. (Anonymous), Sr., respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Modecai Newman of counsel), for appellant. Chas Budnick, Brooklyn, N.Y. (Ellen Tobin of counsel), for respondent-respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Modecai Newman of counsel), for appellant. Chas Budnick, Brooklyn, N.Y. (Ellen Tobin of counsel), for respondent-respondent.
Joel Kahn, Brooklyn, N.Y., for respondent.
Steven C. Bernstein, Brooklyn, N.Y., attorney for the child.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
In related child protective proceedings pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County (O'Shea, J.), dated June 5, 2013, as, upon a decision of the same court dated May 31, 2013, made after a fact-finding hearing, granted the mother's motion pursuant to CPLR 4401 for judgment as a matter of law and dismissed the petition insofar as asserted against the mother. The notice of appeal from the decision is deemed to be a notice of appeal from the order of fact-finding and disposition ( seeCPLR 5512[a] ).
ORDERED that the order of fact-finding and disposition is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the petition is reinstated insofar as asserted against the mother, it is found that the mother derivatively neglected the subject child, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and a new disposition thereafter on that branch of the petition which was asserted against the mother.
In December 2010, upon a petition alleging that the mother neglected her daughter, Akasha, by abusing marijuana, the mother consented to entry of a finding of neglect. An order of disposition was entered upon that finding, requiring, among other things, that the mother participate in anger management, parenting skills, and domestic violence programs. In March 2011, less than three months after the mother consented to entry of the finding of neglect with respect to Akasha, the mother gave birth to the subject child, William, Jr. The mother, but not William, Jr., tested positive for marijuana. Two days after William was born, the Commissioner of the Administration for Children's Services of the City of New York (hereinafter the petitioner) filed a petition in this proceeding alleging, among other things, that the mother derivatively neglected William, Jr. The petition cited the mother's positive test for marijuana, as well as the mother's alleged noncompliance with other provisions of the order of disposition in the child protective proceeding with respect to Akasha.
At the fact-finding hearing in the instant matter, the petitioner sought to introduce evidence of the neglect finding as to Akasha as proof that the mother in fact neglected Akasha, and in support of the petition in this proceeding alleging derivative neglect of William, Jr. The Family Court declined to admit the evidence. It held that a finding of neglect as to one child entered upon the party's consent is not admissible as “proof of the neglect” of that child in a subsequent neglect proceeding commenced in connection with another child (Family Ct. Act § 1046[a][i]; see Matter of William N. [Kimberly H.-William N.], 40 Misc.3d 602, 616, 968 N.Y.S.2d 357). Further, upon concluding that the petitioner submitted insufficient proof that the mother derivatively neglected William, Jr., the Family Court granted the mother's motion pursuant to CPLR 4401 for judgment as a matter of law, and dismissed the petition insofar as asserted against the mother. The petitioner appeals.
A petitioning agency has the burden of establishing child neglect under Family Court Act article 10 by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i]; Matter of Maithsa Edourd S., 27 A.D.3d 475, 476, 811 N.Y.S.2d 117). Proof of a respondent's neglect of one child is admissible in determining whether the respondent has neglected another child ( seeFamily Ct. Act § 1046[a][i] ).
The petitioner contends that the Family Court erred in holding that the neglect finding with respect to Akasha was inadmissible as evidence in the proceeding with respect to William Jr. Two sections of the Family Court Act, § 1051(a) and § 1046, are directly relevant here. Section 1051(a) states:
“If facts sufficient to sustain the petition are established ..., or if all parties and the attorney for the child consent, the court shall ... enter an order finding that the child is an abused child or a neglected child and shall state the grounds for the finding.”
Next, section 1046, as relevant here, provides:
“(a) In any hearing under this article ...: (i) proof of the ... neglect of one child shall be admissible evidence on the issue of the ... neglect of any other child of ... the respondent.”
The entry of a finding of neglect of one child may not be made without a factual basis, even upon consent ( see generally M. Sobie and G. Solomon, New York Family Court Practice § 2.62 at 171–172 [2d ed. 10 West's N.Y. Prac. Series 2012]; cf. Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501). Thus, entry of a finding of neglect as to a child clearly constitutes proof that that child was neglected, even if the order was entered upon consent ( see Matter of Alyssa WW. [Clifton WW.], 106 A.D.3d 1157, 1157–1158, 964 N.Y.S.2d 729). Accordingly, such a fact-finding order is admissible with respect to the issue of whether the parent derivatively neglected another child ( seeFamily Ct. Act § 1046[a][i]; cf. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162;Matter of Silmon v. Travis, 95 N.Y.2d at 475–476, 718 N.Y.S.2d 704, 741 N.E.2d 501;Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 472 N.Y.S.2d 97;Matter of Cumberland Pharmacy v. Blum, 69 A.D.2d 903, 903, 415 N.Y.S.2d 898; but cf. Matter of Howard v. Stature Elec., Inc., 20 N.Y.3d 522, 525, 964 N.Y.S.2d 77, 986 N.E.2d 911). Consequently, the Family Court erred in holding that the neglect finding as to Akasha was not admissible evidence in the neglect proceeding as to William, Jr. The neglect finding as to Akasha was proof that the mother neglected Akasha and was, thus, admissible evidence in the proceeding regarding William, Jr., even though the finding as to Akasha was entered on the mother's consent.
Further, while the proof of the neglect as to Akasha was admissible with respect to this proceeding alleging derivative neglect of William, Jr., “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings” (Matter of Andrew B.-L., 43 A.D.3d 1046, 1047, 844 N.Y.S.2d 337;see Matter of Elijah O. [Marilyn O.], 83 A.D.3d 1076, 1077, 923 N.Y.S.2d 575). Rather,
“the focus of the inquiry to determine whether derivative neglect is present 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. Such flawed notions of parental responsibility are generally reliable indicators that a parent who has abused [or neglected] one child will place his or her other children at substantial risk of harm” ( Matter of Dutchess County Dept. of Social Servs. v. Douglas E., 191 A.D.2d 694, 694, 595 N.Y.S.2d 800 [citations omitted] ).
Further,
“[i]n determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, ‘the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists. In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future’ ” (Matter of Elijah O. [Marilyn O.], 83 A.D.3d at 1077, 923 N.Y.S.2d 575, quoting Matter of Cruz, 121 A.D.2d 901, 902–903, 503 N.Y.S.2d 798;see Matter of Baby Boy W., 283 A.D.2d 584, 585, 724 N.Y.S.2d 494).
Here, the mother consented to a finding that she neglected Akasha in a proceeding based upon the allegation that she abused marijuana. The finding of neglect as to Akasha was entered only three months prior to the birth of William, Jr., and the commencement of this derivative neglect proceeding. That “prior finding was so proximate in time to the derivative proceeding, that it can reasonably be concluded that the condition still exists” (Matter of Amber C., 38 A.D.3d 538, 541, 831 N.Y.S.2d 478;see Matter of Baby Boy W., 283 A.D.2d at 585, 724 N.Y.S.2d 494). In any event, the evidence of the mother's positive test for marijuana upon the birth of William, Jr., established that the mother had continued to abuse marijuana.
Additionally, the order of disposition in the proceeding with respect to Akasha required that the mother participate in anger management, parenting skills, and domestic violence avoidance programs. While the evidence established that the mother partially engaged in remedial services and programs mandated in that order of disposition, she failed to fully comply with that order. Thus, she failed to demonstrate that the circumstances leading to the neglect finding as to Akasha “cannot be expected to exist currently or in the foreseeable future” (Matter of Baby Boy W., 283 A.D.2d at 585, 724 N.Y.S.2d 494;see Matter of Elijah O. [Marilyn O.], 83 A.D.3d at 1077, 923 N.Y.S.2d 575;Matter of Amber C., 38 A.D.3d at 541, 831 N.Y.S.2d 478).
The remaining contentions of the mother and the petitioner are without merit.
Accordingly, we reverse the order of fact-finding and disposition, reinstate the petition insofar as asserted against the mother, find that the mother derivatively neglected the subject child, and remit the matter to the Family Court, Kings County, for a dispositional hearing, and a new disposition thereafter on that branch of the petition which was asserted against the mother.