Opinion
2013-11337 (Docket No. N-17600-12)
12-24-2014
In the Matter of MADISON B. (Anonymous). Administration for Children Services, respondent; Daniel B. (Anonymous), appellant.
Helene Bernstein, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for respondent. Richard L. Herzfeld, New York, N.Y., attorney for the child.
Helene Bernstein, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for respondent.
Richard L. Herzfeld, New York, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
Opinion
Appeal from an order of fact-finding and disposition of the Family Court, Kings County (Ilana Gruebel, J.), dated November 20, 2013. The order, after fact-finding and dispositional hearings, found that the father neglected the subject child and released the child to the custody of the mother.
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
The Administration for Children's Services (hereinafter ACS) commenced this neglect proceeding, alleging that the father had neglected the subject child. The allegation of neglect was based in part on a finding of the Family Court that, prior to the subject child's birth, the father had neglected the subject child's two older siblings.
“In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the ‘determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists' ” (Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 804, 925 N.Y.S.2d 531, quoting Matter of Cruz, 121 A.D.2d 901, 902–903, 503 N.Y.S.2d 798 ; see Matter of Elijah O. [Marilyn O.], 83 A.D.3d 1076, 1077, 923 N.Y.S.2d 575 ). If such a showing is made, “ ‘the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future’ ” (Matter of Jamarra S. [Jessica S.], 85 A.D.3d at 804, 925 N.Y.S.2d 531, quoting Matter of Cruz, 121 A.D.2d at 903, 503 N.Y.S.2d 798 ).
Here, the conduct which formed the basis for the Family Court's finding that the father neglected the subject child's two older siblings was “so proximate in time to [this proceeding] that it can reasonably be concluded that the condition still exists” (Matter of Jamarra S. [Jessica S.], 85 A.D.3d at 804, 925 N.Y.S.2d 531 ; see Matter of Jamel T. [Gemayel T.], 120 A.D.3d 504, 989 N.Y.S.2d 908 ), and the father failed to complete the programs mandated by the prior order of disposition relating to the older siblings (see Matter of Shay–Nah FF. [Theresa GG.], 106 A.D.3d 1398, 1400–1401, 966 N.Y.S.2d 266 ; Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 925 N.Y.S.2d 531 ; Matter of Amber C., 38 A.D.3d 538, 831 N.Y.S.2d 478 ; Matter of Hannah UU., 300 A.D.2d 942, 944, 753 N.Y.S.2d 168 ). Thus, ACS demonstrated that the father derivatively neglected the subject child, and because the father “ ‘failed to present any evidence to either rebut [ACS's] prima facie case or establish that the condition leading to [the] neglect finding as to the other child[ren] no longer existed,’ ” the derivative neglect finding was proper (Matter of Jamarra S. [Jessica S.], 85 A.D.3d at 804–805, 925 N.Y.S.2d 531, quoting Matter of Baby Boy W., 283 A.D.2d 584, 585, 724 N.Y.S.2d 494 ; see Matter of Amber C., 38 A.D.3d at 541, 831 N.Y.S.2d 478 ; Matter of Cruz, 121 A.D.2d at 902–903, 503 N.Y.S.2d 798 ).
Furthermore, “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 ; see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 ; Matter of Kinara C. [Jerome C.], 89 A.D.3d 839, 841, 932 N.Y.S.2d 169 ), upon “ ‘a balanced consideration of all relevant factors' ” (Matter of Kinara C. [Jerome C.], 89 A.D.3d at 841, 932 N.Y.S.2d 169, quoting Matter of Sicurella v. Embro, 31 A.D.3d 651, 651, 819 N.Y.S.2d 75 ; see Matter of Latrell S. [Christine K.], 80 A.D.3d 618, 619, 914 N.Y.S.2d 645 ). Here, the Family Court providently exercised its discretion in denying the application of the father's attorney for an adjournment of the fact-finding and dispositional hearings (see Matter of N. [Fania D.-Alice T.], 108 A.D.3d 551, 552–553, 969 N.Y.S.2d 92 ; Matter of Winfield v. Gammons, 105 A.D.3d 753, 754, 963 N.Y.S.2d 272 ; Matter of O'Leary v. Frangomihalos, 89 A.D.3d 948, 949, 933 N.Y.S.2d 88 ; see also Matter of Steven B., 24 A.D.3d 384, 385, 807 N.Y.S.2d 29, affd. 6 N.Y.3d 888, 817 N.Y.S.2d 599, 850 N.E.2d 646 ).