Opinion
2014-04-23
In the Matter of NOAH M. (Anonymous). Administration for Children's Services, respondent; Carlos M. (Anonymous), appellant.
Lisa Lewis, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis Caputo and Benjamin Welikson of counsel), for respondent.
Lisa Lewis, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis Caputo and Benjamin Welikson of counsel), for respondent.
Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Queens County (Tally, J.), dated December 7, 2012, which denied, without a hearing, his motion pursuant to Family Court Act § 1061 to modify or vacate an order of fact-finding and disposition of the same court dated November 23, 2011.
ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the father's motion which was to vacate so much of the order of fact-finding and disposition dated November 23, 2011, as found that he neglected the subject child; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for further proceedings in accordance herewith.
The Family Court properly denied that branch of the father's motion which was to modify so much of an order of fact-finding and disposition as placed the father under the petitioner's supervision for a stated period of time pursuant to an order suspending judgment in accordance with Family Court Act § 1052(a)(i), as the period of supervision had expired ( see Merril Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 1061, at 143; see e.g. Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1013, 953 N.Y.S.2d 121;Matter of Lisbeth H. [Noemy H.], 83 A.D.3d 836, 837, 920 N.Y.S.2d 680).
However, the Family Court should have held a hearing on that branch of the father's motion which was to vacate so much of the order of fact-finding and disposition as found that he had neglected the subject child. Pursuant to Family Court Act § 1061, the court may modify an order issued during the course of a proceeding under article 10 for “good cause shown” ( see Matter of Kevin M.H. [Kevin H.], 102 A.D.3d 690, 691, 958 N.Y.S.2d 175;Matter of Nicole KK, 46 A.D.3d 1267, 1268, 848 N.Y.S.2d 442;Matter of Jeffrey X., 283 A.D.2d 687, 689, 724 N.Y.S.2d 126). Under the circumstances of this case, the Family Court should have conducted a hearing to determine whether the father demonstrated “good cause” to vacate the finding of neglect ( see Matter of Kevin M.H. [Kevin H.], 102 A.D.3d at 692, 958 N.Y.S.2d 175;Matter of Natasha M. [Gaston Y.], 94 A.D.3d 765, 766, 941 N.Y.S.2d 687;Matter of Araynnah B. [Moshammet R.], 80 A.D.3d 608, 609, 914 N.Y.S.2d 669;Matter of Angelina AA., 222 A.D.2d 967, 969, 635 N.Y.S.2d 775;see also Matter of Crystal S. [Elaine S.], 74 A.D.3d 823, 902 N.Y.S.2d 623). Accordingly, the matter must be remitted to the Family Court, Queens County, for a hearing and, thereafter, a new determination on that branch of the motion. SKELOS, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.