Opinion
2014-10-9
In re AUTUMN P., A Child Under the Age of Eighteen Years, etc., Brandy P., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Adira Hulkower of counsel), attorney for the child.
GONZALEZ, P.J., SAXE, DeGRASSE, RICHTER, CLARK, JJ.
Order of fact-finding, Family Court, New York County (Susan K. Knipps, J.), entered on or about July 30, 2013, which, following a hearing, determined that respondent father derivatively neglected the subject child, unanimously affirmed, without costs.
A preponderance of the evidence supports the finding of derivative neglect. Although respondent completed batterers' services pursuant to an order of disposition issued in 2010, after a finding that he neglected the subject child's older sister by committing an act of domestic violence against the mother in the presence of that child, the record supports the findings that in January and March 2012, respondent committed additional acts of domestic violence against the mother of his children, including an incident that resulted in respondent pleading guilty to a charge of menacing. Based on these incidents of domestic violence, the record supports the finding that respondent suffers from an impaired level of parental judgment sufficient to create a substantial risk of harm to any child in his care ( see Matter oF niA J. [janeT jordaN P.], 107 A.D.3d 566, 567, 968 N.Y.S.2d 446 [1sT dept. 2013] ). That the subject child was not present when respondent abused the mother does not preclude a finding of derivative neglect ( see Matter of Joseph P. [Cindy H.], 112 A.D.3d 553, 553–554, 978 N.Y.S.2d 37 [1st Dept. 2013] ).
Contrary to respondent's argument, neither res judicata nor collateral estoppel precludes litigation of the allegations of derivative neglect in the subject petition. Although a prior petition against respondent alleging derivative neglect of the subject child was dismissed, that petition was filed in December 2011, prior to the incidents of domestic violence and the guilty plea noted above. Thus, they were not included in that petition and were not previously litigated ( see In re Stephiana UU., 66 A.D.3d 1160, 887 N.Y.S.2d 699 [3d Dept.2009]; Matter of Mercedes R., 300 A.D.2d 664, 751 N.Y.S.2d 788 [2d Dept.2002] ). Although respondent asserts that the agency should have amended the prior petition to include the subsequent incidents, it was not required to do so.