Opinion
01-11-2024
In the MATTER OF ETHAN M., a Child Under Eighteen Years of Age, etc., Miguel M., Respondent-Appellant, Administration for Children’s Services, Petitioner-Respondent. v. Linda M., Nonparty-Respondent.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Chase H. Merchanick of counsel), for Administration for Children’s Services, respondent. Law Office of Bryan Greenberg LLC, New York (Bryan S. Greenberg of counsel), for Linda M., respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Chase H. Merchanick of counsel), for Administration for Children’s Services, respondent.
Law Office of Bryan Greenberg LLC, New York (Bryan S. Greenberg of counsel), for Linda M., respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Renwick, P.J., Manzanet-Daniels, González, Rodriguez, Pitt-Burke, JJ.
Order of disposition, Family Court, Bronx County (E. Grace Park, J.), entered on or about October 21, 2022, to the extent it brings up for review an amended fact-finding order, same court and Judge, entered on or about December 5, 2022, which found that respondent father neglected the subject child, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
[1] A preponderance of the evidence supports Family Court’s finding of neglect based on the father’s misuse of drugs (Family Ct Act § 1012[f][i][B]). The caseworker’s uncontroverted and credible testimony established that the father admitted that he had "relapsed," and the child reported that the father used drugs, left "dirty needles" in various rooms around the house, and had asked the child for "clean" urine. The child further stated that the father’s "strange" behavior was occurring more frequently (see Matter of Maranda LaP. ν. Francesca LaP., 23 A.D.3d 221, 222, 804 N.Y.S.2d 300 [1st Dept. 2005]). When the caseworker sought more information from the child during her investigation, the father became volatile and asked the caseworker to leave the house.
[2, 3] Contrary to the father's argument, the child’s statements were sufficiently corroborated by his own admission that he had relapsed (see Matter of C.L. [Edward L.], 214 A.D.3d 481, 482, 184 N.Y.S.3d 348 [1st Dept. 2023]), as well as by the caseworker’s observations (see Matter of Cerenity F. [Jennifer W.], 160 A.D.3d 540, 541, 74 N.Y.S.3d 250 [1st Dept. 2018]). The child’s statements were sufficiently detailed and there is no reason to disturb the court’s credibility findings which are entitled to deference (see Matter of Harrhae Y. [Shy-Macca Ernestine B.], 112 A.D.3d 512, 513, 977 N.Y.S.2d 22 [1st Dept. 2013]). The court properly drew a negative inference from the father’s failure to testify (see Matter of Adonis H. [Enerfry H.], 198 A.D.3d 478, 479, 156 N.Y.S.3d 153 [1st Dept. 2021]). Under these circumstances, there is a statutory presumption of neglect, which the father failed to refute, as he presented no evidence that he was participating in a rehabilitative program (see Matter of Sahairah J. [Rosemarie R.] 135 A.D.3d 452, 25 N.Y.S.3d 6 [1st Dept. 2016]).
The father’s contention that he is entitled to a missing witness inference is unpreserved and unavailing (see Matter of Kayvon B., 85 A.D.3d 452, 924 N.Y.S.2d 272 [1st Dept. 2011]). The father’s argument that he was denied effective assistance of counsel is likewise unpreserved (see Matter of Iyana. W. [Shamark W.], 124 A.D.3d 418, 1 N.Y.S.3d 48 [1st Dept. 2015]) and unavailing (see Matter of Frederick T. [Maria T.], 191 A.D.3d 489, 490, 138 N.Y.S.3d 308 [1st Dept. 2021]).
We have considered the father’s remaining arguments and find them unavailing.