Opinion
2011-10-13
In re VIRGINIA C., A Child Under the Age of Eighteen Years, etc.,Sharri A., Respondent–Appellant,Administration for Children Services, Petitioner–Respondent.
Daniel R. Katz, New York, for appellant.Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.Frederic P. Schneider, New York, attorney for the child.
Daniel R. Katz, New York, for appellant.Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.Frederic P. Schneider, New York, attorney for the child.
Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about April 28, 2010, which, upon a finding that respondent mother derivatively neglected the subject child, placed the child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing, unanimously affirmed, without costs. Appeal from order of protection, same court and Judge, entered on or about April 28, 2010, which directed respondent to stay away from and not communicate with the subject child and her caretaker, except for agency-supervised visits, until April 27, 2011, unanimously dismissed, without costs, as moot.
Family Court providently exercised its discretion in admitting respondent's testimony on cross-examination that she used cocaine after the petition was filed. Respondent opened the door to such evidence by testifying on direct examination that, prior to the filing of the petition, she had left several drug treatment programs and had not tested positive for drugs, and by falsely testifying on cross-examination that she had never used drugs after completing such a program ( see People v. Massie, 2 N.Y.3d 179, 184–185, 777 N.Y.S.2d 794, 809 N.E.2d 1102 [2004]; Matter of Ashley X., 50 A.D.3d 1194, 1196, 854 N.Y.S.2d 794 [2008] ). In any event, even if Family Court improperly admitted the postpetition evidence, such error was harmless. The court based its finding of derivative neglect on respondent's failure to complete a drug treatment program, not her postpetition drug use ( see Matter of Brianna R. [Marisol G.], 78 A.D.3d 437, 438, 910 N.Y.S.2d 71 [2010], lv. denied 16 N.Y.3d 702, 2011 WL 135698 [2011] ).
A preponderance of the evidence supports Family Court's finding that respondent derivatively neglected the subject child ( see Family Court Act § 1046[a][i] ). There were two prior orders finding that respondent had neglected her other children, and respondent admitted that she failed to complete a required drug treatment program ( see Matter of Jocelyn S., 30 A.D.3d 273, 817 N.Y.S.2d 43 [2006] ).
The appeal from the order of protection is dismissed as moot, because the period it was to be in effect has expired ( see Matter of Deivi R. [Marcos R.], 68 A.D.3d 498, 499, 890 N.Y.S.2d 52 [2009] ). However, were that not the case, the order of protection would have to be vacated as having been made without evidentiary basis and without affording respondent an opportunity to be heard.
We have considered respondent's remaining contentions and find them unavailing.