Opinion
11-21-2017
In re MALACHI B., A Dependent Child Under the Age of Eighteen Years, etc., Windell B., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Bruce A. Young, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child.
Bruce A. Young, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child.
ACOSTA, P.J., TOM, WEBBER, GESMER, SINGH, JJ.
Order of fact-finding, Family Court, Bronx County (Michael R. Milsap, J.), entered on or about December 23, 2016, which determined, after a hearing, that respondent father had neglected the subject child, unanimously affirmed, without costs.
Family Court erred in making a finding of neglect based on abandonment (see Family Ct. Act § 1012[f][ii] ), because the petition as filed did not allege abandonment and the petition was never properly amended to include that allegation (see also Matter of Vallery P. [Jondalla P.], 106 A.D.3d 575, 575, 967 N.Y.S.2d 13 [1st Dept.2013] ). Sufficient proof, however, was presented to sustain the original petition without considering the new allegations of abandonment (see Matter of Aiden XX. [Jesse XX.], 104 A.D.3d 1094, 1096, 962 N.Y.S.2d 726 [3d Dept.2013] ; see also Matter of Tia B., 257 A.D.2d 366, 683 N.Y.S.2d 44 [1st Dept.1999] ). The father repeatedly indicated a desire to have no contact with the child, failed to visit the child, and failed to plan for the child's care (see Matter of Kimberly F. [Maria F.], 146 A.D.3d 562, 563, 45 N.Y.S.3d 75 [1st Dept.2017], lv. denied 29 N.Y.3d 902, 2017 WL 1137238 [2017] ). The father also had no permanent home and failed to provide proof of any verifiable income. The father's abdication of his parental obligations, including his failure to plan for the child's needs, placed the child at imminent risk of harm, which is sufficient grounds for a finding of neglect (see Family Ct. Act § 1012[f][I] ; Kimberly F., 146 A.D.3d at 563, 45 N.Y.S.3d 75).
The father's failure to testify or offer evidence to contest the allegations of neglect permitted the drawing of the strongest inference against him that the opposing evidence in the record permitted (see Matter of Rachel S.D. [Luis N.], 113 A.D.3d 450, 979 N.Y.S.2d 22 [1st Dept.2014] ).We have considered the father's remaining arguments and find them unavailing.