Opinion
15606, 15605, 15604, 15603, 15602
07-02-2015
In re JALICIA G., A Child Under the Age of Eighteen Years, etc., Jacqueline G., etc., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent. In re Jalicia G., A Child Under the Age of Eighteen Years, etc., Randolph W, Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Carol L. Kahn, New York, for Jacqueline G., appellant. Law Office of Tennille Tatum–Evans, New York (Tennille M. Tatum–Evans of counsel), for Randolph W., appellant. Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
Carol L. Kahn, New York, for Jacqueline G., appellant.
Law Office of Tennille Tatum–Evans, New York (Tennille M. Tatum–Evans of counsel), for Randolph W., appellant.Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child.
GONZALEZ, P.J., SWEENY, RENWICK, SAXE, FEINMAN, JJ.
Opinion Order, Family Court, Bronx County (Erik S. Pitchal, J.), entered on or about January 30, 2014, which, following a fact-finding hearing, determined that respondent mother Jacqueline G., had neglected the subject child, and order (same court and Judge), entered on or about September 12, 2013, which denied the mother's motion to disqualify the Legal Aid Society (LAS) from representing the child, unanimously affirmed, without costs. Appeal from order (same court and Judge), entered on or about July 8, 2013, which denied her application pursuant to Family Ct. Act § 1028, unanimously dismissed, without costs, as moot. Order (same court, Kelly O'Neill Levy, J.), entered on or about November 26, 2013, finding, after a hearing, that respondent father Randolph W. neglected and derivatively neglected the child, unanimously affirmed, without costs.
Family Court's finding that there is no conflict in the Legal Aid Society's (LAS) continued representation of the subject child was proper, notwithstanding that its staff attorneys had represented the mother when she was a child who was the subject of a neglect proceeding. LAS demonstrated that, due to the size of its organization, and the safeguards and screening procedures in place, there was no risk that the LAS personnel representing the subject child in these proceedings had acquired or could acquire any confidences and secrets she shared with other LAS personnel who previously represented her (see Kassis v. Teacher's Ins. & Annuity Assn., 93 N.Y.2d 611, 616–618, 695 N.Y.S.2d 515, 717 N.E.2d 674 [1999] ; People v. Wilkins, 28 N.Y.2d 53, 56, 320 N.Y.S.2d 8, 268 N.E.2d 756 [1971] ; Matter of T'Challa D., 3 A.D.3d 569, 770 N.Y.S.2d 649 [2nd Dept.2004] ).
A preponderance of the evidence supports the finding that the pattern of domestic violence between the parents, and the proximity of the child's bedroom to the physical and verbal fighting that occurred, placed the child at imminent risk of emotional and physical impairment (see Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 404–405, 974 N.Y.S.2d 369 [1st Dept.2013] ; Matter of Gianna C.-E. [Alonso E.], 77 A.D.3d 408, 907 N.Y.S.2d 754 [1st Dept.2010] ).
The evidence that the mother had been diagnosed with a mental illness for which she did not seek treatment, while not alone a basis for a finding of neglect, supported the finding of neglect since she displayed a lack of insight into the effect of her illness on her ability to care for the young child (see Matter of Karma C. [Tenequa A.], 122 A.D.3d 415, 416, 995 N.Y.S.2d 71 [1st Dept.2014] ; Matter of Jonathan S. [Ismelda S.], 79 A.D.3d 539, 912 N.Y.S.2d 215 [1st Dept.2010] ).
The record supports the finding of derivative neglect against the father. The father displayed a lack of insight into his parental duties, evidenced by his refusal to comply with services as directed by a Family Court dispositional order entered upon findings of sexual abuse of an older child and neglect of other children involving domestic violence and excessive corporal punishment (see Matter of Cashmere S. [Rinell S.], 125 A.D.3d 543, 544–545, 4 N.Y.S.3d 190 [1st Dept.2015] ). Given the seriousness of the prior findings, which evince such a profoundly impaired level of parental judgment that any child in his care would be at a substantial risk of harm, the prior order, issued in 2010, was sufficiently proximate in time to the instant proceedings commenced in 2012 to support a finding of derivative neglect (see Matter of Nyjaiah M. [Herbert M.], 72 A.D.3d 567, 899 N.Y.S.2d 53 [1st Dept.2010] ).
The mother's appeal from the order denying her application to return her child pursuant to Family Court Act § 1028 has been rendered moot by the determination of neglect (see Matter of Jabez F. [Martha L.-Bernard F.], 92 A.D.3d 448, 938 N.Y.S.2d 518 [1st Dept.2012] ). Her appeal from the fact-finding order of neglect was not affected by the subsequent entry of an order of disposition because the intermediate order is appealable as of right (Family Ct. Act § 1112[a] ; see Matter of Christy C. (Roberto C.), 77 A.D.3d 563, 909 N.Y.S.2d 351 [1st Dept.2010] ).