Opinion
16456.
12-22-2015
In re ENRIQUE S., and Others, Children Under the Age of Eighteen Years, etc. Kelba C. S., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent, Nicole H., Respondent.
Larry S. Bachner, Jamaica, for appellant. Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Larry S. Bachner, Jamaica, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Opinion
Order of fact-finding and disposition (one paper) of the Family Court, New York County (Stewart H. Weinstein, J.), entered on or about December 1, 2014, which, to the extent appealed from as limited by the briefs, determined that respondent father had neglected the subject children, unanimously affirmed, without costs.
The finding of neglect is supported by a preponderance of the evidence (see Family Ct. Act §§ 1012[f][i][B]; 1046[b][i] ). The record evidences the father's untreated mental illness, aggressive and violent behavior towards the mother, and his admission that he had been diagnosed with bipolar disorder, which raised the substantial probability of neglect that would place the children at imminent risk of impairment if released to his care (see Matter of Liarah H. [Dora S.], 111 A.D.3d 514, 515, 975 N.Y.S.2d 389 1st Dept.2013; Matter of Cerenithy Ecksthine B. [Christian B.], 92 A.D.3d 417, 938 N.Y.S.2d 510 1st Dept.2012 ).
Furthermore, the court properly granted petitioner agency's motion to amend the petition to conform to the evidence (F.C.A. § 1051[b] ). The record demonstrates that the father had ample notice of the new allegations and an opportunity to respond (see Matter of Aaron C., 105 A.D.3d 548, 963 N.Y.S.2d 208 1st Dept.2013; Matter of Madison H. [Demezz H.-Tabitha A.], 99 A.D.3d 475, 476, 952 N.Y.S.2d 124 1st Dept.2012 ). In addition to meeting its burden of showing that the father neglected the subject children by reason of his mental illness, the record supports the alternative theory of neglect advanced by the agency based on the failure of the father to protect the children from the mother's neglect, which he knew, or should have known, created a risk of harm to them (see Matter of Erica D. (Maria D.), 77 A.D.3d 505, 909 N.Y.S.2d 64 1st Dept.2010; Matter of Christy C., 77 A.D.3d 563, 909 N.Y.S.2d 351 1st Dept.2010 ).