Opinion
17021-, 17021A Dkt. No. N-18946/14 Case No. 2021–04253
01-05-2023
In the MATTER OF RAYMOND F., a Child Under Eighteen Years of Age, etc., Sabrina D.F., also known as Sabrina W., et al., Respondents–Appellants, v. Administration for Children's Services, Petitioner–Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for Sabrina D.F., appellant. Steven N. Feinman, White Plains, for Robert F., appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for Sabrina D.F., appellant.
Steven N. Feinman, White Plains, for Robert F., appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.
Renwick, J.P., Gesmer, Kennedy, Scarpulla, Pitt–Burke, JJ.
Order of disposition, Family Court, Bronx County (Ashley B. Black, J.), entered on or about October 18, 2021, to the extent it brings up for a review a fact-finding order, same court (Gilbert A. Taylor, J.), entered on or about February 3, 2020, which found that respondent father neglected the subject child, and that respondent mother derivatively 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.
Family Court's finding that the mother derivatively neglected the child was supported by a preponderance of the evidence showing that she neglected the child's older siblings (see Family Ct Act §§ 1012[f] ; 1046[a][i]; [b]; Matter of Samiyah H. [Sammie H.], 187 A.D.3d 540, 540, 133 N.Y.S.3d 19 [1st Dept. 2020] ). The prior findings of neglect against the mother with respect to two of her older children, issued over the period between July 2002 and July 2013, support a finding that because of her untreated mental health issues, she was unable to properly care for any child (see Matter of Cheron B. [Vanessa G.], 157 A.D.3d 618, 618, 67 N.Y.S.3d 457 [1st Dept. 2018] ; Matter of Phoenix J. [Kodee J.], 129 A.D.3d 603, 603–604, 12 N.Y.S.3d 64 [1st Dept. 2015] ). Further, the conduct underlying the findings of neglect, the most recent of which was entered against the mother about one year before this petition was filed against her, is close enough in time to support the conclusion that her parental judgment remained impaired (see Matter of Camarrie B. [Maria R.], 107 A.D.3d 409, 409, 966 N.Y.S.2d 415 [1st Dept. 2013] ). Family Court also properly drew a negative inference against the mother on the issue because she did not testify at the fact-finding hearing (see Matter of Darren HH. [Amber HH.], 68 A.D.3d 1197, 1198, 889 N.Y.S.2d 770 [1st Dept. 2009], lv denied 14 N.Y.3d 703, 2010 WL 607128 [2010] ).
Likewise, the finding of neglect against the father was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i]). The expert testimony and the progress notes demonstrate a substantial probability that the child was at imminent risk of neglect because the father was incapable of providing him with the minimum degree of care needed to accommodate his upbringing (see Matter of Eugene G., 76 A.D.2d 781, 782, 429 N.Y.S.2d 17 [1st Dept. 1980], lv dismissed 51 N.Y.2d 878 [1980] ). The progress notes also lend further support to the Family Court's neglect finding against the father because they show that when caseworkers visited his home, it was in a filthy and unsanitary condition that never improved over time (see Matter of Cerenity F. [Jennifer W.], 160 A.D.3d 540, 541, 74 N.Y.S.3d 250 [1st Dept. 2018] ).
The father also did not testify at the fact-finding hearing, and Family Court was entitled to draw the strongest negative inference against him as the opposing evidence would allow and conclude that he failed to benefit from the services he completed (see Matter of Joseph MM. [Clifford MM.], 91 A.D.3d 1077, 1079, 937 N.Y.S.2d 377 [3d Dept. 2012], lv denied 18 N.Y.3d 809, 944 N.Y.S.2d 480, 967 N.E.2d 705 [2012]).
Family Court properly credited the opinion of petitioner's expert witness over that of the father's expert, and that determination is entitled to great weight on appeal (see Matter of Ashanti A., 56 A.D.3d 373, 373, 869 N.Y.S.2d 20 [1st Dept. 2008] ). At any rate, the testimony by the father's expert amply support the court's determination, as the expert testified that she did not consider the case progress notes; those notes show that the father missed a majority of his scheduled visits with the child's older brother and did not take advantage of the services being offered to him despite the order of disposition directing him to comply with supervision and visit the older brother (see Matter of Skylean A.P. [Jeremiah S.], 136 A.D.3d 515, 515, 26 N.Y.S.3d 517 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3084142 [2016] ).