Opinion
215 CAF 19-00554
03-19-2021
In the MATTER OF LAMAIRIK S. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Erika S., Respondent, and Jonas S., Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (DAVID L. CHAPLIN OF COUNSEL), FOR PETITIONER-RESPONDENT. ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (DAVID L. CHAPLIN OF COUNSEL), FOR PETITIONER-RESPONDENT.
ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order that adjudicated the subject child to be a neglected child based on a finding of derivative neglect. Contrary to the father's contention, Family Court's finding of derivative neglect is supported by the requisite preponderance of the evidence (see Family Ct Act § 1046 [b] [i] ; Matter of Dante S. [Kathryne T.] [appeal No. 2], 181 A.D.3d 1311, 1312, 119 N.Y.S.3d 798 [4th Dept. 2020] ). "It is well settled that a derivative finding of neglect is warranted where, as here, the [father's] neglect of the subject child is so closely connected with the care of another child as to indicate that the [subject] child is equally at risk" ( Matter of Angel L.H. [Melissa H.] , 85 A.D.3d 1637, 1637, 924 N.Y.S.2d 888 [4th Dept. 2011], lv denied 17 N.Y.3d 711, 2011 WL 4835708 [2011] [internal quotation marks omitted]). Here, petitioner established that " ‘the neglect ... of [three older children] was so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still existed’ " ( Matter of Burke H. [Tiffany H.] , 117 A.D.3d 1568, 1568, 984 N.Y.S.2d 917 [4th Dept. 2014] ; see Matter of Sasha M. , 43 A.D.3d 1401, 1402, 845 N.Y.S.2d 206 [4th Dept. 2007] ). Thus, contrary to the father's contentions, there was sufficient evidence to establish that he derivatively neglected the subject child inasmuch as " ‘the evidence of ... neglect of [the older] child[ren] indicates a fundamental defect in [the father's] understanding of the duties of parenthood ... or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care’ " ( Matter of Jacob W. [Jermaine W.] , 170 A.D.3d 1513, 1514, 96 N.Y.S.3d 398 [4th Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2376029 [2019] ).
Although the father has shown progress in completing the directed programs, he failed to meet his burden of demonstrating that the circumstances leading to the prior neglect "cannot reasonably be expected to exist currently or in the foreseeable future" ( Matter of Amber C. , 38 A.D.3d 538, 541, 831 N.Y.S.2d 478 [2d Dept. 2007], lv denied 8 N.Y.3d 816, 839 N.Y.S.2d 454, 870 N.E.2d 695 [2007], lv dismissed 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643 [2008] [internal quotation marks omitted]; see Matter of William N. [Kimberly H.] , 118 A.D.3d 703, 706, 987 N.Y.S.2d 406 [2d Dept. 2014] ). "[I]nasmuch as the paramount purpose of Family [Court] Act article 10 is the protection of the physical, mental, and emotional well-being of children ..., and mindful of the particular vulnerability attendant to newborn infants such as the child herein," we conclude that the court did not err in making a finding of derivative neglect ( Matter of Tristyn R. [Jacqueline Z.] , 118 A.D.3d 1468, 1469, 988 N.Y.S.2d 378 [4th Dept. 2014] [internal quotation marks omitted]).
We have reviewed the father's remaining contention and conclude that it does not warrant reversal or modification of the order.