Opinion
16979-, 16979A Dkt. No. NA-32900/19 Case No. 2021–04753
12-29-2022
In the MATTER OF KIMONA C., a Child Under Eighteen Years of Age, etc., Tiara C., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Carol L. Kahn, New York, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Susan Paulson of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Carol L. Kahn, New York, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Kern, J.P., Kennedy, Scarpulla, Pitt–Burke, Higgitt, JJ.
Order of disposition, Family Court, Bronx County (Lynn M. Leopold, J.), entered on or about December 1, 2021, which, inter alia, found, upon granting petitioner agency's motion for summary judgment, that respondent mother had derivatively neglected and abused the subject child, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about October 8, 2021, which granted the motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The agency made a prima facie showing of derivative abuse based on the prior order, entered before the subject child was born, finding that the mother had severely abused and neglected one of her older children and derivatively abused another ( Matter of Heaven C.E. [Tiara C.], 164 A.D.3d 1177, 1178, 85 N.Y.S.3d 5 [1st Dept. 2018] ). The conduct underlying the prior order demonstrates that the mother's parental judgment was so flawed that any child in her care would be at risk (see Matter of Keith H. [Logann M.K.], 113 A.D.3d 555, 555, 980 N.Y.S.2d 14 [1st Dept. 2014] ; Matter of Semenah R. [Keno R. – Shanika R.], 135 A.D.3d 503, 504, 24 N.Y.S.3d 39 [1st Dept. 2016] ; Matter of Noah Jeremiah J. [Kimberly J.], 81 A.D.3d 37, 42, 914 N.Y.S.2d 105 [1st Dept. 2010] ). The conduct underlying the prior findings of severe abuse was sufficiently proximate in time to the derivative neglect proceedings to support the conclusion that the conditions still existed (see Matter of Suffolk County Dept. of Social Servs. on Behalf of Michael V. v. James M., 83 N.Y.2d 178, 182–183, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ; Matter of Takia B. [Antoine N.], 73 A.D.3d 575, 902 N.Y.S.2d 515 [1st Dept. 2010] ). Moreover, the mother's failure to participate in services, as evidenced by the fact that the older children were never returned to her care, established that the conditions that led to the prior findings still existed and the subject child would be at risk in the mother's care (see Matter of A'Nyia P.G. [Qubilah C.T.G.], 176 A.D.3d 495, 496, 108 N.Y.S.3d 341 [1st Dept. 2019] ). In opposition to the agency's motion, the mother failed to submit any evidence sufficient to rebut the presumption that the conditions leading to the severe abuse of the child's older siblings had not been remedied (see CPLR 3212[b] ; see also Matter of A’ Nyia P.G., 176 A.D.3d at 496, 108 N.Y.S.3d 341 ; Matter of Keith H. [Logann M.K.], 113 A.D.3d at 556, 980 N.Y.S.2d 14 ).
To the extent the mother raises arguments relating to the timeliness and staleness of the summary judgment motion, those contentions are improperly raised for the first time on appeal (see Life Sourcing Co., Ltd. v. Shoez, Inc., 179 A.D.3d 439, 115 N.Y.S.3d 305 [1st Dept. 2020] ). In any event, they are unpersuasive as the court providently exercised its discretion in setting a revised schedule for the summary judgment motion.
We have considered the mother's remaining arguments and find them unavailing.