Opinion
903, 902.
05-12-2016
In re GABRIELLE N., and Another, Children Under the Age of Eighteen Years, etc., Jacqueline T., et al., Respondents–Appellants. The Administration for Children's Services, Petitioner–Respondent.
George E. Reed, Jr., White Plains, for Jacqueline T., appellant. Law Office of Israel Premier Inyama, New York (Israel Inyama of counsel), for Delroy N., appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
George E. Reed, Jr., White Plains, for Jacqueline T., appellant.
Law Office of Israel Premier Inyama, New York (Israel Inyama of counsel), for Delroy N., appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Appeal from order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about July 1, 2014, to the extent it brings up for review a fact-finding order, same court and Justice, entered on or about April 15, 2013, which found that respondent parents neglected their special needs daughter and derivatively neglected their younger daughter, held in abeyance, and the matter remanded to Family Court for a reconstruction hearing with respect to the missing medical records admitted into evidence as Exhibits 1 to 4. Appeal from order of disposition otherwise dismissed, without costs, as moot.
At issue on appeal is whether a preponderance of the evidence supports the court's finding that the parents neglected the special needs child by interfering with her medical care, and delaying necessary treatment to the point where petitioner Administration for Children's Services sought, and was granted, a medical override of the parents' refusal to consent to surgery (see Matter of Jaquan F. [Alexis F.], 120 A.D.3d 1113, 1114, 993 N.Y.S.2d 18 [1st Dept.2014] ), and whether the finding of derivative neglect was also appropriate inasmuch as the parents' behavior demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care (see Matter of Joshua R., 47 A.D.3d 465, 466, 849 N.Y.S.2d 246 [1st Dept.2008], lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008] ). However, these issues cannot be resolved on the record provided to this Court since the medical records from the four health facilities that treated the special needs child, received into evidence in Family Court, were not submitted to this Court as part of the original record and are missing (see Matter of Garner v. Garner, 88 A.D.3d 708, 709, 930 N.Y.S.2d 465 [2d Dept.2011] ; Matter of Hall v. Ladson, 18 A.D.3d 753, 754, 797 N.Y.S.2d 756 [2d Dept.2005] ). Accordingly, the matter should be remanded for a reconstruction hearing as indicated.
The father's appeal from disposition is moot, since the dispositional order has expired and been superseded by subsequent permanency orders (see Matter of Skye C. [Monica S.], 127 A.D.3d 603, 604, 8 N.Y.S.3d 126 [1st Dept.2015] ).
TOM, J.P., ACOSTA, RICHTER, MANZANET–DANIELS, GESMER, JJ., concur.