In the Matter of Shawndalaya

Full title: In the Matter of SHAWNDALAYA II., Alleged to be a Neglected Child…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 19, 2006

25 A.D.3d 938 (N.Y. App. Div. 2006)

2006 N.Y. Slip Op. 269

807 N.Y.S.2d 214

Opinion

97652.

January 19, 2006.

Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered February 2, 2005, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent's child to be neglected.

Abbie Goldbas, Utica, for appellant, and Jamella II., Youngstown, Ohio, appellant pro se.

Alan J. Burczak, Law Guardian, Plattsburgh.

Before: Crew III, J.P., Peters and Mugglin, JJ., concur.

Spain, J.

Petitioner commenced this proceeding pursuant to Family Ct Act article 10 alleging that respondent neglected her daughter. After a fact-finding hearing where two witnesses testified for petitioner and respondent was not present but was represented by her attorney, Family Court found that the child was chronically absent from school, that respondent suffered from mental illness and that respondent had exposed her child to violent and dangerous conduct. The court concluded that the child was neglected and ordered placement with petitioner for one year. Respondent appeals.

Respondent's counsel has requested to be relieved of her assignment on the basis that no nonfrivolous issues exist that can be raised on appeal. As our review of the record and the brief submitted by respondent's counsel reveals possible nonfrivolous issues, we disagree. The neglect adjudication was not based on an admission by respondent, but was premised on Family Court's determination that petitioner's witnesses were credible and on the evidence taken at the hearing, the sufficiency of which respondent's attorney disputed at the close of proof ( see Matter of Darin J. v. Tylena S., 298 AD2d 630, 632; Matter of Bishop v. Livingston, 288 AD2d 703, 704-705; Matter of Andrew MM., 267 AD2d 515, 515-516; cf. Matter of Patricia O., 279 AD2d 895, 895). Further, among other things, petitioner was served with the neglect petition while hospitalized in a mental health facility. Accordingly, the application of respondent's counsel to be relieved of her assignment is granted and new counsel will be assigned to address any nonfrivolous issues which the record may disclose.

Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.