Opinion
2014-02209, Docket No. N-50-12.
09-30-2015
In the Matter of DAYYAN J.L. (Anonymous). Orange County Department of Social Services, petitioner-respondent. Autumn M. (Anonymous), appellant, et al., respondent.
Richard N. Lentino, Middletown, N.Y., for appellant. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Peter R. Schwartz of counsel), for petitioner-respondent. Clara H. Lipinsky, Pine Island, N.Y., attorney for the child.
Richard N. Lentino, Middletown, N.Y., for appellant.
Langdon C. Chapman, County Attorney, Goshen, N.Y. (Peter R. Schwartz of counsel), for petitioner-respondent.
Clara H. Lipinsky, Pine Island, N.Y., attorney for the child.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion Appeal from an order of fact-finding and disposition of the Family Court, Orange County (Carol S. Klein, J.), dated December 9, 2013. The order, after fact-finding and dispositional hearings, found that the mother had derivatively neglected the subject child and, upon consent, placed the child in the custody of the Orange County Department of Social Services, to reside in foster care until the next permanency hearing.
ORDERED that the appeal from so much of the order as, upon consent, placed the child in the custody of the Orange County Department of Social Services, to reside in foster care until the next permanency hearing, is dismissed, without costs or disbursements; and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order as, upon consent, placed the subject child in the custody of the Orange County Department of Social Services, to reside in foster care until the next permanency hearing, must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Brian R., 48 A.D.3d 576, 577, 852 N.Y.S.2d 235 ). In any event, that portion of the order of disposition has been rendered academic, as it has expired by its own terms (see Matter of Sarah A. [Daniel A.], 109 A.D.3d 467, 970 N.Y.S.2d 273 ; Matter of Brian R., 48 A.D.3d at 577, 852 N.Y.S.2d 235 ). Nevertheless, the Family Court's finding of derivative neglect against the mother is not academic, since an adjudication of derivative neglect constitutes a permanent and significant stigma which might indirectly affect the mother's status in future proceedings (see Matter of Najad D. [Kiswana M.], 99 A.D.3d 707, 708, 951 N.Y.S.2d 747 ; Matter of Ifeiye O., 53 A.D.3d 501, 501, 861 N.Y.S.2d 133 ; Matter of Brian R., 48 A.D.3d at 577, 852 N.Y.S.2d 235 ).
“In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the ‘determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists' ” (Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 804, 925 N.Y.S.2d 531, quoting Matter of Cruz, 121 A.D.2d 901, 902–903, 503 N.Y.S.2d 798 ; see Matter of Madison B. [Daniel B.], 123 A.D.3d 1027, 999 N.Y.S.2d 496 ; Matter of Harmony M.E. [Andre C.], 121 A.D.3d 677, 679, 994 N.Y.S.2d 138 ; Matter of Jeremiah I.W. [Roger H.W.], 115 A.D.3d 967, 969, 982 N.Y.S.2d 516 ; Matter of Elijah O. [Marilyn O.], 83 A.D.3d 1076, 1077, 923 N.Y.S.2d 575 ). “In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future” (Matter of Cruz, 121 A.D.2d at 903, 503 N.Y.S.2d 798 ; see Matter of Elijah O. [Marilyn O.], 83 A.D.3d at 1077, 923 N.Y.S.2d 575 ; Matter of Amber C., 38 A.D.3d 538, 540, 831 N.Y.S.2d 478 ).
Here, the petitioner established that the subject child was derivatively neglected by the mother. The petitioner demonstrated, inter alia, that the mother failed to seek mental health counseling, complete drug treatment and domestic violence counseling programs, and attend parenting classes as required by orders of disposition issued in connection with prior neglect findings against her as to an older sibling, and that the conduct that formed the basis of the most recent neglect finding was sufficiently proximate in time to this derivative neglect proceeding that it can reasonably be concluded that the condition still exists (see Matter of Madison B. [Daniel B.], 123 A.D.3d at 1027–1028, 999 N.Y.S.2d 496 ; Matter of Jamarra S. [Jessica S.], 85 A.D.3d at 804, 925 N.Y.S.2d 531 ; Matter of Amber C., 38 A.D.3d at 541, 831 N.Y.S.2d 478 ).
The mother failed to rebut the petitioner's prima facie case or establish that the “condition cannot reasonably be expected to exist currently or in the foreseeable future” (Matter of Cruz, 121 A.D.2d at 903, 503 N.Y.S.2d 798 ; see Matter of Elijah O. [Marilyn O.], 83 A.D.3d at 1077, 923 N.Y.S.2d 575 ; Matter of Amber C., 38 A.D.3d at 540, 831 N.Y.S.2d 478 ).
Moreover, the evidence adduced at the hearing established that the subject child was in imminent danger of becoming physically, mentally, or emotionally impaired as a result of the mother's mental illness (see Matter of Negus T. [Fayme B.], 123 A.D.3d 836, 996 N.Y.S.2d 544 ; Matter of Amber Gold J. [Vanessa J.], 88 A.D.3d 1001, 931 N.Y.S.2d 669 ; Matter of Faith J., 47 A.D.3d 630, 848 N.Y.S.2d 545 ).
The mother's remaining contentions are without merit.
Accordingly, the Family Court properly found that the mother derivatively neglected the subject child.