Malachi H. v. Dequisa H.

Full title: In re Malachi H., A Dependent Child Under the Age of Eighteen Years, etc.…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: Feb 10, 2015

2015 N.Y. Slip Op. 1186 (N.Y. App. Div. 2015)

Opinion

14204 14203

02-10-2015

In re Malachi H., A Dependent Child Under the Age of Eighteen Years, etc., v. Dequisa H., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondent.

Sweeny, J.P.

, Renwick, Moskowitz, Feinman, Kapnick, JJ.

Andrew J. Baer, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Claire V. Merkine of counsel), attorney for the child.

Order of disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about February 20, 2014, to the extent it brings up for review a fact-finding order (same court and Judge), entered on or about December 5, 2013, which, after a hearing, determined that respondent neglected the subject child, unanimously affirmed, without costs. Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The finding of neglect is supported by a preponderance of the evidence, which demonstrates that respondent left her then two-year-old son alone in her apartment for an hour and that he was discovered in the hallway outside the apartment while she was out (see Family Court Act § 1046[b][i]). Respondent's conduct placed her son in imminent danger of physical or emotional harm, and constitutes neglect, notwithstanding that the child was unharmed (see Family Court Act § 1012[f][i][B]; Matter of Rosemary V. [Jorge V.], 103 AD3d 484 [1st Dept 2013]).

Since respondent made no application for dismissal pursuant to Family Court Act § 1051(c), her contention that the court should have dismissed the petition because the aid of the court was no longer required is unpreserved, and we decline to consider it ( see Matter of Cherish C. [Shanikwa C.], 102 AD3d 597 [1st Dept 2013]). Were we to consider it, we would reject it.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 10, 2015

CLERK