Opinion
14168-14168A Dkt. No. NN-00537/19 Case No. 2020-04334
07-06-2021
In the MATTER OF MAXWELL P., a Child Under the Age of 18 Years, etc., Administration for Children's Services, Petitioner-Respondent, v. Katherine S. Respondent-Appellant.
Steven P. Forbes, Huntington, for appellant. James E. Johnson, Corporation Counsel, New York (Scott Shorr of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the child.
Steven P. Forbes, Huntington, for appellant.
James E. Johnson, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the child.
Acosta, P.J., Kapnick, Moulton, Scarpulla, JJ.
Order of disposition, Family Court, Bronx County (Michael R. Milsap, J.), entered on or about August 24, 2020, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about April 28, 2020, which found that respondent mother neglected the subject child, unanimously affirmed, without costs. Appeal from the aforementioned fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the dispositional order.
A preponderance of the evidence supports the Family Court's finding that respondent medically neglected the child (see Family Ct Act §§ 1012[f][i][A] ; 1046[b][i]). Respondent's failure to ensure that her son consistently received his prescribed medication for his ear infection placed him at imminent risk (see Matter of Joelle T. [Laconia W.], 140 A.D.3d 513, 514, 34 N.Y.S.3d 15 [1st Dept. 2016] ). Contrary to respondent's contention, expert testimony regarding how her mental illness affected her ability to care for the child was not required. The caseworker's testimony regarding her out-of-court statement that she stopped giving the child the antibiotic prescribed for his ear infection prematurely because she did not believe it was helping him was admissible as a party admission (see Nicholson v. Scoppetta, 3 N.Y.3d 357, 383, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; Matter of Nassair S. [Chareshma T.], 144 A.D.3d 604, 605, 43 N.Y.S.3d 274 [1st Dept. 2016] ).
We find that the court also properly determined that petitioner proved by a preponderance of the evidence that respondent neglected the child by reason of her untreated mental illness and failure to provide adequate supervision and guardianship, which created a substantial probability that the child would be placed at imminent risk of harm if placed in her care (see Family Ct Act §§ 1012[f][i][A] ; 1046[b][i]). The record shows that petitioner's resistance to treatment and lack of insight into how her illness impacted her ability to care for her son created a substantial probability that he would not receive adequate care and would be exposed to imminent danger (see Matter of Jalicia G. [Jacqueline G.], 130 A.D.3d 402, 403, 13 N.Y.S.3d 49 [1st Dept. 2015] ; Matter of Ronald Anthony G. [Sammantha J.], 83 A.D.3d 608, 922 N.Y.S.2d 53 [1st Dept. 2011] ).
The Family Court properly drew the strongest possible negative inference against respondent for her failure to testify at the fact-finding hearing (see Matter of Mia B. [Brandy R.], 100 A.D.3d 569, 569, 955 N.Y.S.2d 15 [1st Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 452145 [2013] ). Finally, there is no reason to disturb the Family Court's evaluation of the evidence including its credibility determinations which are clearly supported by the record (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of V.C.[S.C.], 192 A.D.3d 533, 140 N.Y.S.3d 699 [1st Dept. 2021] ).