| Matter of Alexander Z. (Melissa Z.) |
| 2015 NY Slip Op 04701 [129 AD3d 1160] |
| June 4, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Alexander Z., a Child Alleged to beNeglected. Albany County Department for Children, Youth and Families, Respondent;Melissa Z., Appellant. (Proceeding No. 1.) In the Matter of Alexander Z., a ChildAlleged to be Neglected. Albany County Department for Children, Youth and Families,Respondent; Jimmy Z., Appellant. (Proceeding No. 2.) In the Matter of Enrique Z., aChild Alleged to be Neglected. Albany County Department for Children, Youth andFamilies, Respondent; Melissa Z., Appellant. (Proceeding No. 3.) In the Matter ofEnrique Z., a Child Alleged to be Neglected. Albany County Department for Children,Youth and Families, Respondent; Jimmy Z., Appellant. (Proceeding No.4.) |
Paul J. Connolly, Delmar, for Melissa Z., appellant.
Sandra M. Colatosti, Albany, for Jimmy Z., appellant.
James Green, Albany County Department for Children, Youth and Families, Albany,for respondent.
Sharon Lee McNulty, Albany, attorney for the children.
Garry, J. Appeals from two orders of the Family Court of Albany County (Kushner,J.), entered May 12, 2014, which, among other things, granted petitioner's applications,in four proceedings pursuant to Family Ct Act article 10, to adjudicate the subjectchildren to be neglected.
Respondent Melissa Z. (hereinafter the mother) and respondent Jimmy Z.(hereinafter the father) have six children together, the two youngest of whom (born in2011 and 2013) are the subjects of these proceedings. Respondents' four older childrenwere the subjects of separate permanent neglect and termination proceedings in whichthis Court recently affirmed orders that revoked a suspended judgment and terminatedrespondents' parental rights (Matter of Sequoyah Z. [Melissa Z.], 127 AD3d 1518[2015]). Each of the subject children was born during the pendency of the proceedingsinvolving the older children. Petitioner removed each of the subject children fromrespondents' care within a few days after their births and commenced these derivativeneglect proceedings shortly thereafter, in October 2011 as to the older child and March2013 as to the younger child.
During the joint fact-finding hearing in these derivative neglect proceedings,petitioner moved for Family Court to take judicial notice of a permanency report andcertain decisions and [*2]orders involving respondents'children that were entered between July 2012 and November 2013. The court granted themotion, despite respondents' opposition, and took judicial notice of all of the documents.Petitioner relied solely upon these documents as its case-in-chief and, following the closeof proof, moved to amend the petitions to conform to the evidence. Family Court grantedthis motion over respondents' objections and determined that respondents hadderivatively neglected the subject children. Following a dispositional hearing, the courtplaced the subject children in petitioner's custody. Respondents appeal.
Initially, we reject respondents' contention that Family Court erred in grantingpetitioner's motions. As respondents contend, postpetition evidence is generallyinadmissible in neglect proceedings (see Matter of Elijah NN., 66 AD3d 1157, 1159 [2009],lv denied 13 NY3d 715 [2010]; Matter of Ashley X., 50 AD3d 1194, 1196[2008]).[FN1]However, petitioner followed the proper procedure in moving to amend the petitions toinclude the postpetition proof (see Matter of Angel L.H. [Melissa H.], 85 AD3d 1637,1637 [2011], lv denied 17 NY3d 711 [2011]; Matter of Amanda RR., 293AD2d 779, 780 [2002]; compare Matter of Elijah NN., 66 AD3d at 1159;Matter of Jessica YY., 258 AD2d 743, 747 [1999]).
As respondents note, the procedure to be followed in amending a petition to conformto the proof in a Family Ct Act article 10 proceeding is established by Family Ct Act§ 1051 (b).[FN2] This statute specifically requires that arespondent be allowed "reasonable time to prepare to answer the amended allegations"(Family Ct Act § 1051 [b]). Here, as parties to the proceedings, respondentswere fully familiar with the facts and issues addressed in the documents. At a pretrialconference, they received "reasonable advance notice" (Matter of "Baby Girl" Q.,14 AD3d 392, 393 [2005], lv denied 5 NY3d 704 [2005]) that this proof wouldbe considered; the documents were specifically discussed at this conference, and copieswere provided to the parties' counsel. Accordingly, no surprise or prejudice resulted fromthe amendment (see Matter of Ashley X., 50 AD3d at 1196; Matter of NikoleB., 263 AD2d 622, 623 [1999]). Although respondents now contend that they werenot given the requisite reasonable time to respond, they did not request a reopening of theproof, an opportunity to answer or an adjournment, nor have they shown that they wouldhave been able to controvert any of the findings in the decisions and orders at issue ifthey had been given additional time (see Matter of Michelle S., 195 AD2d 721,722 [1993]; see also Matter ofKila DD., 28 AD3d 805, 806 [2006]). We note that substantial delays hadalready taken place in these proceedings, as well as those involving the older children,caused at least in part by respondents' actions and omissions (see Matter of SequoyahZ. [Melissa Z.], 127 AD3d at 1521 n 4). In light of the attendant circumstances, andconsidering the additional delay that would necessarily have resulted had petitioner beencompelled to file new petitions, we find no abuse of Family Court's "broad discretion"here (Matter of Hailey XX.[Angel XX.], 127 AD3d 1266, 1267 [2015]).
Next, petitioner met its burden to establish that respondents derivatively neglectedthe subject children. Evidence that a parent neglected a child is admissible to prove thatthe parent [*3]neglected another child (see FamilyCt Act § 1046 [a] [i]), but may not provide the sole basis for adetermination of derivative neglect unless the parent's past conduct demonstrates"fundamental flaws in the [parent's] understanding of the duties ofparenthood—flaws that are so profound as to place any child in his or her care atsubstantial risk of harm" (Matterof Brad I. [Brad J.], 117 AD3d 1242, 1243-1244 [2014] [internal quotationmarks and citations omitted]; see Matter of Kole HH., 61 AD3d 1049, 1053 [2009],lv dismissed 12 NY3d 898 [2009]). Such fundamental flaws may be proven by,among other things, evidence of "a longstanding pattern of neglect perpetrated by [theparent] upon [his or] her other children" (Matter of Evelyn B., 30 AD3d 913, 914-915 [2006], lvdenied 7 NY3d 713 [2006]).
The prior documents revealed that neglect proceedings were originally commencedagainst respondents in 2007, and that none of their six children had been in their caresince 2009, other than the few days immediately after the subject children's births.Throughout that time, respondents had been unable to demonstrate the ability toadequately supervise the children so that they could be returned to respondents' care.Family Court (Duggan, J.) had initially issued a suspended judgment to give respondents"a last call" to demonstrate their capacity to care for the children, but that was revoked inNovember 2013—three months before the fact-finding hearing in the derivativeneglect proceedings. One reason stated for the revocation of the suspended judgment wasthat respondents had been unable, despite petitioner's ongoing supervision andassistance, to maintain suitable housing for the children. At the time of the revocationhearing, the father was living in a shelter and the mother was residing with a registeredsex offender. Additionally, they had violated the requirements of the suspended judgmentby, among other things, failing to maintain contact with their caseworker or keep heradvised of their whereabouts, and failing to progress to unsupervised visitation with thechildren. At that time, the four older children had been in foster care for more than threeyears, and the subject children had spent their lives in foster care.
As the father contends, the documents reveal that he had demonstrated betterparenting skills than the mother; nevertheless, he manifested the same inability as themother to, among other things, provide the children with suitable housing or progress tounsupervised visitation. Notably, respondents chose not to testify at the fact-findinghearing, thus "permitting Family Court to draw the strongest possible negative inferenceagainst [them]" (Matter ofCollin H., 28 AD3d 806, 809 [2006]; see Matter of Michael JJ. [Gerald JJ.], 101 AD3d 1288,1291-1292 [2012], lv denied 20 NY3d 860 [2013]). Further, the prior decisionsand orders were "sufficiently proximate in time such that it [could] be reasonablyconcluded that the conditions still exist[ed]" at the time of the fact-finding hearing (Matter of Paige WW. [CharlesXX.], 71 AD3d 1200, 1203 [2010] [internal quotation marks and citationomitted]; see Matter of Ilonni I.[Benjamin K.], 119 AD3d 997, 998 [2014], lv denied 24 NY3d 914[2015]). Accordingly, we find that the record demonstrates a persistent pattern of neglectof respondents' four older children, constituting proof by a preponderance of theevidence that they derivatively neglected the subject children (see Matter of Michael N. [JasonM.], 79 AD3d 1165, 1167-1168 [2010]; Matter of Evelyn B., 30 AD3dat 917; Matter of D'Anna KK., 299 AD2d 761, 763 [2002]).
Lahtinen, J.P., McCarthy and Rose, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1:In addition to otherdocuments, petitioner wished Family Court to consider the July 2012 decision thatrespondents' parental rights to the older children should be terminated, the July 2012order suspending judgment, and the November 2013 decision that the suspendedjudgment should be revoked.
Footnote 2:Family Court improperlyreferenced a provision of the CPLR in the course of the proceedings (see FamilyCt Act § 165 [a]).