Opinion
2015-06-03
In the Matter of MICHELLE H. (Anonymous). Administration for Children's Services, petitioner respondent; Filandra C. (Anonymous), respondent appellant. (Proceeding No. 1) In the Matter of Matthew H. (Anonymous). Administration for Children's Services, petitioner respondent; Filandra C. (Anonymous), respondent appellant. (Proceeding No. 2) In the Matter of Melanie C. (Anonymous). Administration for Children's Services, petitioner respondent; Filandra C. (Anonymous), respondent appellant; Edgar C. (Anonymous), nonparty-respondent. (Proceeding No. 3).
Yasmin Daley Duncan, Brooklyn, N.Y., for respondent-appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Ingrid R. Gustafson of counsel), for petitioner-respondent.
Yasmin Daley Duncan, Brooklyn, N.Y., for respondent-appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Ingrid R. Gustafson of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Susan Clement of counsel), attorney for the child Michelle H.
Seymour Zager, White Plains, N.Y., attorney for the children Matthew H. and Melanie C.
Tenille M. Tatum–Evans, New York, N.Y., for nonparty-respondent.
MARK C. DILLON, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL BETSY BARROS, JJ.
Appeals from an order of fact-finding of the Family Court, Queens County (Barbara Salinitro, J.), dated June 28, 2012, and two orders of disposition of that court (Marybeth S. Richroath, J.), both dated January 16, 2013. The order of fact-finding, insofar as appealed from, found, after a hearing, that the mother derivatively neglected Melanie C. and Matthew H. The first order of disposition, after a hearing, awarded custody of Melanie C. to her father. The second order of disposition, after a hearing, among other things, placed Matthew H. in the custody of the Commissioner of Social Services of the City of New York.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the orders of disposition and is brought up for review on the appeals from the orders of disposition; and it is further,
ORDERED that the orders of disposition are affirmed, without costs or disbursements.
The Family Court properly found that the mother derivatively neglected the subject children upon finding that she neglected their older sibling. The record showed derivative neglect of the children Melanie C. and Matthew H. based on, inter alia, the evidence of excessive corporal punishment of the older child and other actions of the mother which demonstrated “such an impaired level of parental judgment as to create a substantial risk of harm” to any child in her care (Matter of David H., 127 A.D.3d 1084, 1085, 7 N.Y.S.3d 452; seeFamily Ct. Act § 1046[a][1]; Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 1314, 944 N.Y.S.2d 923; Matter of James S. [Kathleen S.], 88 A.D.3d 1006, 1006–1007, 931 N.Y.S.2d 524; Matter of Jordan W., 59 A.D.3d 558, 872 N.Y.S.2d 287).
Further, the Family Court did not err in awarding custody of Melanie C. to her father ( seeFamily Ct. Act § 1052[a][ii]; see also Matter of Matthew M., 46 A.D.3d 903, 847 N.Y.S.2d 865; Matter of Jasmine N., 15 A.D.3d 491, 789 N.Y.S.2d 718; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).