Opinion
2011-11-1
In the Matter of SERENITY S. (Anonymous).Commissioner of the Administration for Children's Services of the City of New York, appellant;Tyesha A. (Anonymous), respondent-respondent;Keith S. (Anonymous), nonparty father.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Ellen Ravitch of counsel), for appellant.Anya Mukarji–Connolly and Jessica Marcus, Brooklyn, N.Y., for respondent-respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.Ana Stern, New York, N.Y., for nonparty father.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Ellen Ravitch of counsel), for appellant.Anya Mukarji–Connolly and Jessica Marcus, Brooklyn, N.Y., for respondent-respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.Ana Stern, New York, N.Y., for nonparty father.
In a child neglect proceeding pursuant to Family Court Act article 10, the petitioner, Commissioner of the Administration for Children's Services of the City of New York, appeals, as limited by its brief, from so much of an order of the Family Court, Kings County (Beckoff, J.), dated March 31, 2011, as, after a hearing, denied that branch of its motion which was pursuant to Family Court Act § 1027 to temporarily remove the subject child from the custody of the mother and place the child in its custody pending the outcome of the proceeding.
ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and that branch of the petitioner's motion which was pursuant to Family Court Act § 1027 to temporarily remove the subject child from the custody of the mother and place the child in its custody pending the outcome of the proceeding is granted.
In this proceeding commenced on February 4, 2011, the petitioner, Commissioner of the Administration for Children's Services (hereinafter the petitioner), alleges that the mother derivatively neglected
the subject child, an infant born in January 2011, based upon prior adjudications that the mother, through her drug use, neglected the child's four older siblings, all of whom are in foster care. The petition alleged that, together with the mother's failure to comply with a drug treatment program, the conduct of the mother that formed the basis of the prior neglect adjudications was so proximate in time to the birth of the child that it could reasonably be concluded that the condition still existed at the time the child was born. The Family Court temporarily released the child to the care of the mother and the nonparty father.
On the evening of March 29, 2011, the mother and father were involved in an altercation at the family shelter where they resided with the child, which prompted the petitioner, on the following day, to move, among other things, pursuant to Family Court Act § 1027 to temporarily remove the child from the custody of the mother and place the child in its custody pending the outcome of the proceeding.
At a hearing conducted pursuant to Family Court Act § 1027, the Family Court declined to take judicial notice of the prior neglect adjudications against the mother. Also at the hearing, a shelter supervisor and the mother gave widely disparate accounts of the March 29th incident at the shelter regarding, among other things, the mother's conduct, whether the mother was physically aggressive and intoxicated while carrying the child, whether the child was appropriately clothed, and whether the mother brought appropriate provisions for the child when the mother abruptly left the shelter with the child that evening. At the conclusion of the hearing, the Family Court found credible the testimony of both the shelter supervisor and the mother, despite their starkly contrasting versions of the March 29th incident. In the order appealed from, the Family Court, inter alia, denied that branch of the petitioner's motion which was to temporarily remove the child from the custody of the mother and place the child in its custody pending the outcome of the proceeding. We reverse the order insofar as appealed from.
The Family Court erred in declining to take judicial notice of the prior orders of neglect against the mother with respect to the child's four older siblings ( see Family Ct. Act § 1046[a][i]; Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 80, 637 N.Y.S.2d 666, 661 N.E.2d 138; Matter of Keira O., 44 A.D.3d 668, 671, 844 N.Y.S.2d 344; Matter of Esther II., 249 A.D.2d 848, 849, 672 N.Y.S.2d 483; Matter of Nassau County Dept. of Social Servs. v. Laquetta H., 191 A.D.2d 567, 568, 595 N.Y.S.2d 97).
A credibility assessment of a hearing court is accorded considerable deference on appeal unless it lacks a sound and substantial basis in the record ( see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337; Matter of Sadiq H. [Karl H.], 81 A.D.3d 647, 915 N.Y.S.2d 867; Matter of Andrew B. [Deborah B.], 73 A.D.3d 1036, 900 N.Y.S.2d 661; Matter of Jennifer R., 29 A.D.3d 1003, 817 N.Y.S.2d 308). Where, as here, the Family Court's credibility determination is not supported by the record, this Court is free to make its own credibility assessments and overturn the determination of the hearing court ( see Matter of Chanyae S. [Rena W.], 82 A.D.3d 1247, 924 N.Y.S.2d 793; Matter of Melissa O. [David O.], 73 A.D.3d 783, 899 N.Y.S.2d 637; Matter of Samuel D.-C., 40 A.D.3d 853, 853–854, 837 N.Y.S.2d 170).
Upon review of the record, we conclude that, in light of the four prior neglect adjudications against the mother,
and the shelter supervisor's hearing testimony indicating that, during the March 29th incident at the shelter, the mother was physically aggressive and intoxicated while carrying the child, the petitioner met its burden of establishing, by a preponderance of the evidence, that the child's life or health would be at imminent risk unless she were removed from the custody and care of the mother during the pendency of this proceeding ( see Family Ct. Act § 1027[a], [b], [d]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368–370, 787 N.Y.S.2d 196, 820 N.E.2d 840). Moreover, the evidence adduced at the hearing demonstrated that, during the pendency of this proceeding, the imminent risk to the child's life or health could not be mitigated by reasonable efforts short of removal ( see Nicholson v. Scoppetta, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Jesse J., 64 A.D.3d 598, 599–600, 882 N.Y.S.2d 487).
Accordingly, the Family Court should have granted that branch of the petitioner's motion which was pursuant to Family Court Act § 1027 to temporarily remove the child from the custody of the mother and place the child in its custody pending the outcome of the proceeding.