Opinion
1291 Dkt. Nos. NN-08001/20, NN-00109/22 Case No. 2022-04516
12-21-2023
In the MATTER OF ARIEL A.T.R., and Another, Dependent Children Under Eighteen Years of Age, etc., Timothy R., Respondent-Appellant, v. Ayana G., Respondent, Administration for Children's Services, Petitioner-Respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Diana Lawless of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Manzanet–Daniels, J.P., Gonza´lez, Scarpulla, Mendez, Higgitt, JJ.
Order of disposition, Family Court, Bronx County (Karen M.C. Cortes, J.), entered on or about August 5, 2022, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about May 13, 2022, which, after a hearing, found that respondent father neglected his son and derivatively neglected his daughter, Ariel R., unanimously affirmed, without costs.
A preponderance of the evidence supports Family Court's finding that the physical, mental, or emotional condition of the father's son Timothy M.T.R. had been impaired or was in imminent danger of becoming impaired as a result of the father's history of mental illness and resistance to treatment, notwithstanding the absence of proof of a definitive diagnosis of mental illness (see Family Ct Act §§ 1046[b][i] ; 1012[f][i][B]; Matter of Derick L. [Catherine W.], 135 A.D.3d 499, 22 N.Y.S.3d 835 [1st Dept. 2016], lv denied 27 N.Y.3d 903, 2016 WL 1692078 [2016] ; Matter of Caress S., 250 A.D.2d 490, 673 N.Y.S.2d 123 [1st Dept. 1998] ). The evidence adduced at the fact-finding hearing established that the father received a childhood diagnosis of bipolar disorder and depression, that he lacked insight into his illness and need for treatment, and that his mental condition interfered with his judgment and parenting abilities, thus placing his infant son at imminent risk of physical, mental, or emotional impairment (see Matter of Ruth Joanna O.O. [Melissa O.], 149 A.D.3d 32, 39, 49 N.Y.S.3d 374 [1st Dept. 2017], affd 30 N.Y.3d 985, 65 N.Y.S.3d 122, 87 N.E.3d 154 [2017] ; Matter of Karma C. [Tenequa A.], 122 A.D.3d 415, 416, 995 N.Y.S.2d 71 [1st Dept. 2014] ).
The father's undisputed out-of-court statements as testified by petitioner's witness at the fact-finding hearing established that the father was not regularly taking his prescribed medication because he did not believe that he needed it until he was "very stressed out," and that he would not agree to receiving mental health treatment before the petitions were filed against him despite his admitting that he had problems with his mental health since childhood (see Matter of Jesiel C.V. [Rosalie V.], 189 A.D.3d 568, 568–569, 133 N.Y.S.3d 810 [1st Dept. 2020], lv denied 2021 N.Y. Slip Op. 63571, 2021 WL 1134490 [2021] ). Since the father did not testify, Family Court was entitled to draw a negative inference against him and properly inferred that he implicitly admitted that his out-of-court-statements were true (see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79–80, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ; Matter of Adonis H. [Enerfry H.], 198 A.D.3d 478, 479, 156 N.Y.S.3d 153 [1st Dept. 2021] ). The father's claim that Family Court failed to explain that the court would take a negative inference against him should he not testify at the fact-finding hearing is belied by the record, as the transcript for that hearing establishes that his counsel reassured the court that he informed the father about the consequences of not testifying. Furthermore, the record shows that the effects of the father's mental illness, together with his resistance to treatment and lack of insight into how his illness impacted upon his ability to care for his son, who was two years old at the time of the hearing, was such that if the child were released to his care, there was a substantial probability that the child would not be adequately cared for, placing him in imminent danger (see Matter of Maxwell P. [Katherine S.], 196 A.D.3d 416, 417, 146 N.Y.S.3d 786 [1st Dept. 2021] ; Matter of Nylah E. [Noemi C.], 184 A.D.3d 467, 467–468, 124 N.Y.S.3d 186 [1st Dept. 2020] ). Contrary to the father's contention, there is a causal connection between the basis for the petition and the circumstances that allegedly impaired Timothy M.T.R. or placed him in imminent danger of becoming impaired, because the father told petitioner's witness that he would get very depressed if he did not smoke marijuana and that he needed to smoke the drug in order to care for his son (see Matter of Noah Jeremiah J. [Kimberly J.], 81 A.D.3d 37, 43, 914 N.Y.S.2d 105 [1st Dept. 2010] ). There are no grounds for disturbing Family Court's credibility determinations (see Matter of Nathaniel T., 67 N.Y.2d 838, 842, 501 N.Y.S.2d 647, 492 N.E.2d 775 [1986] ; Matter of Sade B. [Scott M.], 103 A.D.3d 519, 520, 960 N.Y.S.2d 85 [1st Dept. 2013] ).
A preponderance of the evidence supports the finding that the father derivatively neglected his daughter (see Family Ct Act §§ 1012[f] ; 1046[a][i], [b]; Matter of Samiyah H. [Sammie H.], 187 A.D.3d 540, 540, 133 N.Y.S.3d 19 [1st Dept. 2020] ). The record shows that the daughter was born about a month after the fact-finding as to the neglect petition against the father regarding his son commenced, which was sufficiently close in time to the period in which the conditions underlying the father's neglect existed that his daughter would have been a neglected child if placed in his care (see Matter of Essence S. [Stephanie G.] , 134 A.D.3d 415, 416, 21 N.Y.S.3d 213 [1st Dept. 2015] ; Matter of Nhyashanti A. [Evelyn B.], 102 A.D.3d 470, 956 N.Y.S.2d 887 [1st Dept. 2013] ).