Opinion
2011-11-9
In the Matter of KINARA C. (Anonymous).Administration for Children's Services, petitioner-respondent;Jerome C. (Anonymous), appellant.
Omotayo Orederu, Glenville, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Alyse Fiori of counsel), for petitioner-respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel), attorney for the child.
Omotayo Orederu, Glenville, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Alyse Fiori of counsel), for petitioner-respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel), attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the father appeals from a fact-finding order of the Family Court, Queens County (McGowan, J.), dated April 6, 2010, which, after a hearing, found that he had neglected the subject child.
ORDERED that the fact-finding order is affirmed, without costs or disbursements.
At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was abused and/or neglected ( see Family Ct. Act § 1046[b][i]; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 1027, 926 N.Y.S.2d 119; Matter of Mariah C. [Frey C.-M.], 84 A.D.3d 1372, 923 N.Y.S.2d 892). Contrary to the father's contention, the Family Court's determination that he had neglected the subject child was supported by a preponderance of the evidence. Family Court Act § 1012 defines a neglected child as, inter alia, a child “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure
of his [or her] parent ... to exercise a minimum degree of care in supplying the child with adequate ... medical ... care, though financially able to do so” (family ct. act § 1012 [F][I][A] ). HERE, THE EVIDENCe produced at the fact-finding hearing established that the child's physical condition was impaired, or placed in imminent danger of becoming impaired, by the father's failure to assist the child in monitoring her diabetes and administering her insulin medication, after he had been repeatedly advised by medical professionals that the child needed supervision in these tasks to ensure her compliance with the prescribed medical regimen ( see Matter of Jamiar W. [Malipeng W.], 84 A.D.3d 1386, 1387, 924 N.Y.S.2d 553; Matter of John H.M., 54 A.D.3d 763, 764, 864 N.Y.S.2d 89; Matter of Andrei S., 47 A.D.3d 721, 848 N.Y.S.2d 887; Matter of William AA., 24 A.D.3d 1125, 1126, 807 N.Y.S.2d 181; Matter of LeVonn G., 20 A.D.3d 530, 530–531, 800 N.Y.S.2d 428). Furthermore, the Family Court's finding of neglect was supported by the evidence, which demonstrated that the father permitted the child to miss 8 of 21 medical appointments for the management of her diabetes between July 2008 and March 2009, during which time she was caused to be hospitalized on three occasions because of elevated blood glucose levels ( see Matter of Notorious YY., 33 A.D.3d 1097, 1098, 822 N.Y.S.2d 670; Matter of Amanda M., 28 A.D.3d 813, 815, 812 N.Y.S.2d 708; Matter of Joyce SS., 234 A.D.2d 797, 799, 651 N.Y.S.2d 995; cf. Matter of Elijah Q., 36 A.D.3d 974, 976, 828 N.Y.S.2d 607). The allegations of neglect were further corroborated by evidence establishing that the father failed to ensure that the child's prescribed medication and diabetic monitoring devices were available for her use ( cf. Matter of Elijah Q., 36 A.D.3d at 976, 828 N.Y.S.2d 607; cf. also Matter of Annastasia C. [Carol C.], 78 A.D.3d 1579, 1581, 910 N.Y.S.2d 631).
Contrary to the father's contention, he was not prejudiced by the Family Court's decision to incorporate into the fact-finding hearing the evidence adduced at a prior hearing, held pursuant to Family Court Act § 1028 (hereinafter the 1028 hearing), such that reversal of the finding of neglect is warranted. Initially, the father is correct that the Family Court erred in incorporating into the fact-finding hearing the testimony from the 1028 hearing, without first determining that the witnesses were unavailable ( see CPLR 4517[a][3]; Matter of Dillon S., 249 A.D.2d 984, 672 N.Y.S.2d 209; Matter of Raymond J., 224 A.D.2d 337, 337–338, 638 N.Y.S.2d 62; Matter of Christina A., 216 A.D.2d 928, 629 N.Y.S.2d 553; see also Matter of N. Children [Angela N.], 86 A.D.3d 572, 573, 926 N.Y.S.2d 908). However, since the evidence produced at the fact-finding hearing was sufficient, standing alone, to support the Family Court's finding of neglect, the error was not prejudicial to the father and, therefore, does not require reversal ( see generally Matter of Beth M. v. Susan T., 81 A.D.3d 1396, 1396–1397, 917 N.Y.S.2d 466; Matter of Mingo v. Belgrave, 69 A.D.3d 859, 860, 893 N.Y.S.2d 248; Matter of Taylor v. Taylor, 62 A.D.3d 1015, 1016, 881 N.Y.S.2d 440).
Furthermore, the Family Court providently exercised its discretion in denying the application of the father's attorney for an adjournment of the fact-finding hearing. Family Court Act § 1048(a) provides, in relevant part, that “[t]he court may adjourn a fact-finding hearing ... for good cause shown ... on motion of ... the parent or other person legally responsible for the care of the child.” “The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (
Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447; see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646), upon “a balanced consideration of all relevant factors” ( Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75; see Matter of Latrell S. [Christine K.], 80 A.D.3d 618, 619, 914 N.Y.S.2d 645; Matter of Venditto v. Davis, 39 A.D.3d 555, 831 N.Y.S.2d 725). Here, the Family Court providently exercised its discretion in denying the application for an adjournment as the father's attorney failed to offer any explanation for the father's absence on the final two days of the fact-finding hearing ( see Matter of Sanaia L. [Corey W.], 75 A.D.3d 554, 555, 903 N.Y.S.2d 916; Matter of Dakota B. [Brigitta B.], 73 A.D.3d 763, 899 N.Y.S.2d 631; Matter of Holmes v. Glover, 68 A.D.3d 868, 869, 890 N.Y.S.2d 629).