Opinion
2013-03-20
In the Matter of MYLASIA P. (Anonymous). Westchester County Department of Social Services, respondent; Brenda P. (Anonymous), appellant. (Proceeding No. 1). In the Matter of Isaiah P. (Anonymous). Westchester County Department of Social Services, respondent; Brenda P. (Anonymous), appellant. (Proceeding No. 2).
William Martin, White Plains, N.Y., for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Adam Rodriguez of counsel), for respondent.
William Martin, White Plains, N.Y., for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Adam Rodriguez of counsel), for respondent.
Irene J. Goldsmith, White Plains, N.Y., attorney for the children.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
In two related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Schauer, J.), entered September 7, 2011, which, after fact-finding and dispositional hearings, inter alia, found that she neglected the child Mylasia P. and derivatively neglected the child Isaiah P.
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
“[A] party seeking to establish neglect must show, by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ), first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;seeFamily Ct. Act § 1012[f][i]; Matter of Anthony S. [ Dawn N. ], 98 A.D.3d 519, 520, 949 N.Y.S.2d 194). Resolution of issues of credibility is primarily a matter to be determined by the Family Court, who saw and heard the witnesses ( see Matter of Toneatti v. Schiavone, 266 A.D.2d 303, 698 N.Y.S.2d 690;Matter of Commissioner of Social Servs. of City of N.Y. [ Rafael R. ], 188 A.D.2d 528, 529, 591 N.Y.S.2d 195).
Under the facts of this case, including the negative inference which the Family Court was entitled to draw against the mother upon her failure to testify at the fact-finding hearing ( see Matter of Renee R. [ Tonya D. ], 98 A.D.3d 1048, 950 N.Y.S.2d 599), a preponderance of the evidence supported the Family Court's finding of neglect against the mother ( see Matter of Alanah M. [ Donnie M. ], 96 A.D.3d 757, 758, 945 N.Y.S.2d 760). Although the child Mylasia P. attained the age of 18 during the proceeding, the Family Court has jurisdiction to adjudicate the neglect petition, as it was commenced prior to the child's 18th birthday ( see Matter of Sheena B. [ Rory F. ], 83 A.D.3d 1056, 1058, 922 N.Y.S.2d 176;Matter of Jonathan M., 306 A.D.2d 413, 414, 761 N.Y.S.2d 280).
The petitioner was not barred from commencing and maintaining the instant Family Court Act article 10 proceeding against the mother based on the same set of facts contained in a report deemed unfounded and sealed by the New York State Office of Children and Family Services ( see Matter of Joseph T., 23 A.D.3d 482, 483, 805 N.Y.S.2d 87;Matter of Diane P., 110 A.D.2d 354, 355, 494 N.Y.S.2d 881).
The mother's remaining contentions are without merit.