Opinion
2013-05-21
In re VALLERY P., A Dependent Child Under the Age of Eighteen Years, etc., Jondalla P., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
The Center for Family Representation, Inc., New York (Rebecca Horwitz of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondent.
The Center for Family Representation, Inc., New York (Rebecca Horwitz of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Mark DellAquila of counsel), attorney for the child.
TOM, J.P., ACOSTA, RENWICK, DeGRASSE, RICHTER, JJ.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about March 23, 2012, which, upon on a fact-finding determination, after a hearing, that respondent father had neglected the subject child, granted custody to the mother on consent of the parties, unanimously reversed, on the facts, and in the exercise of discretion, without costs, the finding of neglect vacated, and the petition dismissed. Appeal from the order of fact-finding, same court and Judge, entered on or about March 23, 2012, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
Although the issue is not preserved, we conclude the court improperly based its determination on claims of medical neglect not raised in the petition, without affording appellant father a reasonable opportunity to prepare to answer this claim ( seeFamily Court Act § 1051[b]; Matter of Crystal S. [Elaine S.], 74 A.D.3d 823, 825, 902 N.Y.S.2d 623 [2d Dept. 2010] ). Moreover, the petitioner failed to demonstrate by a preponderance of the evidence that the child was impaired or at risk of impairment by the father's failure to seek immediate medical attention for a bump on the child's head, which was not shown to be a significant injury ( see Matter of Hofbauer, 47 N.Y.2d 648, 655–656, 419 N.Y.S.2d 936, 393 N.E.2d 1009 [1979];Matter of Samantha M., 56 A.D.3d 299, 300, 867 N.Y.S.2d 406 [1st Dept. 2008] ).