Opinion
2019–00784 2019–00785 Docket Nos. N–25474–17, N–25475–17
02-05-2020
In the MATTER OF HENRY B. (Anonymous), Jr. Administration for Children's Services, Respondent; v. Cynthia M. (Anonymous), Appellant. (Proceeding No. 1) In the Matter of Trinity C. (Anonymous). Administration for Children's Services, Respondent; v. Cynthia M. (Anonymous), Appellant. (Proceeding No. 2)
Melissa C.R. Chernosky, Port Washington, NY, for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Melanie T. West and Deborah E. Wassel of counsel), for respondent. Allan D. Shafter, Port Washington, NY, attorney for the children.
Melissa C.R. Chernosky, Port Washington, NY, for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Melanie T. West and Deborah E. Wassel of counsel), for respondent.
Allan D. Shafter, Port Washington, NY, attorney for the children.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the mother appeals from (1) an order of fact-finding of the Family Court, Queens County (Margaret Morgan, J.), dated November 15, 2018, and (2) an order of disposition of the same court dated December 17, 2018. The order of fact-finding, after a fact-finding hearing, found that the mother neglected the subject children. The order of disposition, insofar as appealed from, upon the order of fact-finding and after a dispositional hearing, released the child Henry B. to the custody of the non-respondent father with supervision of a child protective agency, social services official, or duly authorized agency for a period of one year, and continued the placement of the child Trinity C. in the custody of the petitioner Administration for Children's Services until the completion of the next permanency hearing.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the appeal from so much of the order of disposition as released the child Henry B. to the custody of the non-respondent father with supervision of a child protective agency, social services official, or duly authorized agency for a period of one year, and the continued placement of the child Trinity C. in the custody of the petitioner Administration for Children's Services until the completion of the next permanency hearing is dismissed as academic, without costs or disbursements, except insofar as it brings up for review so much of the fact-finding order as determined that the mother neglected the subject children; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements. The Administration for Children's Services (hereinafter ACS) commenced these proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected the subject children as a result of her mental illness. After a fact-finding hearing, the Family Court found that the mother failed to exercise a minimum degree of care of the children and that the children were neglected. In the order of disposition, the court, inter alia, directed the release of the child Henry B. to the custody of the non-respondent father with supervision of a child protective agency, social services official, or duly authorized agency for a period of one year, and continued the placement of the child Trinity C. in the custody of ACS until the completion of the next permanency hearing. The mother appeals from the orders of fact-finding and disposition.
The appeal from so much of the order of disposition as directed the supervised release of the child Henry B. to the custody of the non-respondent father for a period of one year must be dismissed as academic, as that portion of the order has expired (see Matter of Louise M.L. [Melinda M.T.], 137 A.D.3d 915, 25 N.Y.S.3d 904 ). Similarly, the appeal from so much of the order of disposition as continued the placement of the child Trinity C. in the custody of ACS until the completion of the next permanency hearing is also academic, as additional permanency hearings have thereafter been held (see Matter of Barry D. [Katrina B.], 178 A.D.3d 695, 111 N.Y.S.3d 213 ; Matter of Peter T. [Shay S.P.], 173 A.D.3d 1043, 1045, 105 N.Y.S.3d 538 ). "However, the appeal from the portion of the order of disposition which brings up for review the finding that the mother neglected the child[ren] is not academic, since the adjudication of neglect constitutes a permanent and significant stigma, which might indirectly affect the mother's status in future proceedings" ( Matter of Jemima M. [Aura M.], 151 A.D.3d 862, 863, 56 N.Y.S.3d 563 ; see Matter of Michael G. [Marie S.F.], 152 A.D.3d 590, 59 N.Y.S.3d 74 ).
"[A] party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046[b][i] ), first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 ; Matter of Nialani T. [ Elizabeth B.], 125 A.D.3d 672, 674, 2 N.Y.S.3d 581 ; Matter of Alexis S.G. [Shanese B.], 107 A.D.3d 799, 799, 967 N.Y.S.2d 737 ). While evidence of a parent's mental illness, alone, is insufficient to support a finding of neglect of a child, such evidence may support a neglect determination "when the proof further demonstrates that the parent's condition creates an imminent risk of physical mental, or emotional harm to the child" ( Matter of Maurice M. [Suzanne H.], 158 A.D.3d 689, 690–691, 68 N.Y.S.3d 740 ; see Matter of Joseph L. [Cyanne W.], 168 A.D.3d 1055, 1056, 93 N.Y.S.3d 113 ; Matter of Nialani T. [Elizabeth B.], 164 A.D.3d 1245, 1246, 83 N.Y.S.3d 206 ; Matter of Jonathan H. [Tamika Q.], 156 A.D.3d 786, 787, 67 N.Y.S.3d 51 ; Matter of Tyler W. [Janice B.], 149 A.D.3d 968, 969, 52 N.Y.S.3d 405 ; Matter of Kiemiyah M. [Cassiah M.], 137 A.D.3d 1279, 1279–1280, 28 N.Y.S.3d 411 ; Matter of Alexis S.G. [Shanese B.], 107 A.D.3d at 799, 967 N.Y.S.2d 737 ).
Here, the evidence adduced at the fact-finding hearing established, by a preponderance of evidence, that the mother suffered from a mental illness and that the physical, mental, or emotional condition of the children was in imminent danger of becoming impaired as a result of such illness (see Matter of Nialani T. [Elizabeth B.], 164 A.D.3d at 1246, 83 N.Y.S.3d 206 ; Matter of Jemima M. [Aura M.], 151 A.D.3d at 863, 56 N.Y.S.3d 563 ; Matter of Kiemiyah M. [Cassiah M.], 137 A.D.3d at 1279–1280, 28 N.Y.S.3d 411 ). Moreover, contrary to the mother's contention, the Family Court providently exercised its discretion in drawing a negative inference against her since she did not testify at the fact-finding hearing (see Matter of Christopher D.B. [Lorraine H.], 157 A.D.3d 944, 947, 69 N.Y.S.3d 719 ; Matter of Jemima M. [Aura M.], 151 A.D.3d at 864, 56 N.Y.S.3d 563 ). Accordingly, we agree with the Family Court's determination that the mother neglected the children.
CHAMBERS, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.