Opinion
10074-10074A
10-15-2019
IN RE A'NYIA P.G., A Child Under Eighteen Years of Age etc., Qubilah C.T.G., Respondent–Appellant, v. Administration for Children's Services, Petitioner-Respondent.
Diaz & Moskowitz, PLLC, New York (Hani M. Moskowitz of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Diaz & Moskowitz, PLLC, New York (Hani M. Moskowitz of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Sweeny, J.P., Tom, Mazzarelli, Oing, Singh, JJ.
The three prior court orders finding that respondent neglected and derivatively neglected the subject child's five older siblings are sufficiently proximate in time to the instant proceeding to permit the presumption that the conditions that formed the basis for the prior findings continue to exist ( see Matter of Noah Jeremiah J. [Kimberly J.], 81 A.D.3d 37, 42, 914 N.Y.S.2d 105 [1st Dept. 2010] ; see also e.g. Matter of Jayden C. [Luisanny A.], 126 A.D.3d 433, 2 N.Y.S.3d 349 [1st Dept. 2015] [sufficient proximity where petition was filed less than two years after findings of abuse were made]; Matter of Darren Desmond W. [Nirandah W.], 121 A.D.3d 573, 574, 993 N.Y.S.2d 908 [1st Dept. 2014] [sufficient proximity where petition was filed less than a year and a half after suspended judgment terminated parental rights] ). The derivative neglect findings entered in April and October 2016 were based on respondent's failure to comply with her court-ordered service plan, and none of the siblings who are the subjects of those findings have been returned to respondent's care (see Matter of Tradale CC. , 52 A.D.3d 900, 902, 859 N.Y.S.2d 288 [3d Dept. 2008] ).
Respondent failed to raise an issue of fact as to whether the conditions that led to the siblings being placed in foster care can reasonably be expected to exist currently or in the foreseeable future (see Matter of Cruz, 121 A.D.2d 901, 903–904, 503 N.Y.S.2d 798 [1st Dept. 1986] ). The affidavit in which she averred that she completed some therapeutic services does not suffice (see Matter of Xiomara D. [Madelyn D.], 96 A.D.3d 1239, 1240–1241, 947 N.Y.S.2d 203 [3d Dept. 2012] ).