Opinion
213 CAF 18–00749
03-20-2020
In the MATTER OF DANTE S. Chautauqua County Department of Health and Human Services, Petitioner–Respondent; v. Kathryne T. and Timothy S., Respondents-Appellants. (Appeal No. 2.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT KATHRYNE T. DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT TIMOTHY S. REBECCA L. DAVISON–MARCH, MAYVILLE, FOR PETITIONER–RESPONDENT. MARY S. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD.MARY S. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT KATHRYNE T.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT TIMOTHY S.
REBECCA L. DAVISON–MARCH, MAYVILLE, FOR PETITIONER–RESPONDENT.
MARY S. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD.MARY S. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal of respondent Kathryne T. from the order insofar as it concerns disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent mother and respondent father each appeal from an order entered after a fact-finding hearing that found that the subject child, their youngest, had been derivatively neglected (see Family Ct. Act § 1012[f][i][B] ). In appeal No. 2, respondents each appeal from an order of disposition that, inter alia, determined that it would be in the child's best interests to remain in the care of petitioner.
Respondents' appeals from the order in appeal No. 1 must be dismissed inasmuch as the appeals from the dispositional order in appeal No. 2 bring up for review the propriety of the fact-finding order in appeal No. 1 (see Matter of Jaime D. [James N.] [appeal No. 1], 170 A.D.3d 1524, 1525, 94 N.Y.S.3d 533 [4th Dept. 2019], lv denied 34 N.Y.3d 901, 2019 WL 5382260 [2019] ).
Contrary to the respondents' contentions in appeal No. 2, we conclude that the court properly determined that the subject child is a derivatively neglected child. Petitioner presented evidence that two of respondents' other children were determined to be neglected children (see Matter of Amber C. , 38 A.D.3d 538, 540, 831 N.Y.S.2d 478 [2d Dept. 2007], lv denied 8 N.Y.3d 816, 839 N.Y.S.2d 454, 870 N.E.2d 695 [2007], lv dismissed 11 N.Y.3d 728, 864 N.Y.S.2d 380, 894 N.E.2d 643 [2008] ; see generally Family Ct. Act § 1046[a][i] ), as well as evidence of respondents' inability to make consistent changes regarding their self-prioritizing, their continued failure to manage daily living without the assistance of third-parties, and their ongoing mental health issues (see Matter of Ariel C.W.-H. [Christine W.] , 89 A.D.3d 1438, 1439, 932 N.Y.S.2d 646 [4th Dept. 2011] ). Petitioner further established that " ‘the neglect ... of the child's older siblings was so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still existed’ " ( Matter of Burke H. [Tiffany H.] , 117 A.D.3d 1568, 1568, 984 N.Y.S.2d 917 [4th Dept. 2014] ; see Matter of Sasha M. , 43 A.D.3d 1401, 1402, 845 N.Y.S.2d 206 [4th Dept. 2007] ). Thus, contrary to respondents' contentions, there was sufficient evidence to establish that respondents derivatively neglected the subject child inasmuch as " ‘the evidence of ... neglect of [the older] child[ren] indicates a fundamental defect in [the parents'] understanding of the duties of parenthood ... or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [their] care’ " ( Matter of Jacob W. [Jermaine W.] , 170 A.D.3d 1513, 1514, 96 N.Y.S.3d 398 [4th Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2376029 [2019] ).
The mother further contends on her appeal that the court erred in continuing the child's placement with petitioner. The mother's appeal from the order in appeal No. 2 insofar as it concerns the disposition must be dismissed as moot, however, because that part of the order has expired by its terms (see Matter of Gabriella G. [Jeannine G.] , 104 A.D.3d 1136, 1136, 962 N.Y.S.2d 537 [4th Dept. 2013] ).
We have considered the father's remaining contentions on his appeal and conclude that none warrants reversal or modification of the order in appeal No. 2.