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In re Diana N.

Supreme Court, Appellate Division, First Department, New York.
May 24, 2016
139 A.D.3d 573 (N.Y. App. Div. 2016)

Opinion

1222A, 1222, 1221.

05-24-2016

IN RE DIANA N., and Others, Children Under Eighteen Years of Age, etc., Kim N., also known as Kim K., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.

  Carol L. Kahn, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the children.


Carol L. Kahn, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the children.

SWEENY, J.P., RENWICK, MOSKOWITZ, KAPNICK, GESMER, JJ.

Order of disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about October 6, 2014, to the extent it brings up for review an order of fact-finding, same court and Judge, entered on or about September 9, 2014, which determined that respondent mother had abused and neglected the subject children, unanimously affirmed, and the appeal therefrom otherwise dismissed, without costs, as moot. Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. Appeal from permanency order, same court (Susan M. Doherty, Ref.), entered on or about May 4, 2015, which, among other things, continued the children's placement with the Commissioner of Social Services pending the next permanency hearing scheduled for September 10, 2015, unanimously dismissed, without costs, as moot.

Although New York was not the “home state” of the subject children so as to establish jurisdiction pursuant to Domestic Relations Law § 76(1) ( Domestic Relations Law § 75–a[7] ), Family Court had temporary emergency jurisdiction pursuant to Domestic Relations Law § 76–c(1) ( Matter of Christianti G. [Diana S.], 125 A.D.3d 859, 860, 1 N.Y.S.3d 844 [2d Dept.2015] ).

The findings that the mother had abused and neglected her children were supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ). The record shows that the mother's husband sexually abused the oldest child for seven years, that one of the other children observed an incident of sexual abuse, and that the mother failed to protect the child from the abuse (Family Ct. Act § 1012[e][iii] ; Matter of Ivette R., 282 A.D.2d 751, 751, 725 N.Y.S.2d 53 [2d Dept.2001] ; Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 966 N.Y.S.2d 406 [1st Dept.2013] ). The oldest child's out-of-court statements were sufficiently corroborated by, among other things, the criminal convictions of the mother's husband and by his own admissions (see Family Ct. Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). The mother also failed to protect the children from the husband's excessive drinking and physical abuse (Matter of Christopher B., 26 A.D.3d 431, 809 N.Y.S.2d 202 [2d Dept.2006] ). Further, the mother failed to provide one of the children with adequate medical care (see Matter of Shawndel M., 33 A.D.3d 1006, 824 N.Y.S.2d 335 [2d Dept.2006] ), and she failed to provide the children with adequate food, shelter, clothing, and education. These failures are due to poor planning, and not because of a lack of financial resources (see Family Ct. Act § 1012[f][i][A] ).

The appeals from the disposition and from the subsequent permanency order are moot (see Matter of Skye C. [Monica S.], 127 A.D.3d 603, 604, 8 N.Y.S.3d 126 [1st Dept.2015] ).


Summaries of

In re Diana N.

Supreme Court, Appellate Division, First Department, New York.
May 24, 2016
139 A.D.3d 573 (N.Y. App. Div. 2016)
Case details for

In re Diana N.

Case Details

Full title:IN RE DIANA N., and Others, Children Under Eighteen Years of Age, etc.…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: May 24, 2016

Citations

139 A.D.3d 573 (N.Y. App. Div. 2016)
33 N.Y.S.3d 179
2016 N.Y. Slip Op. 3991