| Matter of Andrew B.-L. |
| 2007 NY Slip Op 06870 [43 AD3d 1046] |
| September 18, 2007 |
| Appellate Division, Second Department |
| In the Matter of Andrew B.-L., a Child Alleged to be Neglected.Suffolk County Department of Social Services, Respondent; Deborah Byron B.-L., Appellant. Inthe Matter of Jasmine B.-L., a Child Alleged to be Neglected. Suffolk County Department ofSocial Services, Respondent; Deborah Byron B.-L., Appellant. In the Matter of Michelle B.-L., aChild Alleged to be Neglected. Suffolk County Department of Social Services, Respondent;Deborah Byron B.-L., Appellant. |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Jeffrey Tavel of counsel), forrespondent. Marjorie E. Zuckerman, Bay Shore, N.Y., Law Guardian for the children Andrew B.-L. andJasmine B.-L. Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), Law Guardian for thechild Michelle B.-L.
In related neglect proceedings pursuant to Family Court Act article 10, the mother appealsfrom an order of fact-finding and disposition of the Family Court, Suffolk County (Budd, J.),entered April 10, 2006, which, after a hearing, and upon a decision of the same court enteredMarch 31, 2006, inter alia, found that she neglected her daughter Michelle B.-L. by inflictingexcessive corporal punishment upon her and derivatively neglected her two other children,Andrew B.-L. and Jasmine B.-L.
Ordered that on the Court's own motion, the mother's notice of appeal from the decisionentered March 31, 2006 is deemed a premature notice of appeal from the order entered April 10,2006 (see CPLR 5520 [c]); and it is further,
Ordered that the order is reversed, on the law and on the facts, without costs ordisbursements, those branches of the petition alleging derivative neglect of the children AndrewB.-L. and Jasmine B.-L. are dismissed, and the matter is remitted to the Family Court, SuffolkCounty, for a new fact-finding hearing and a new determination thereafter before a differentJudge as to whether the mother neglected the child Michelle B.-L.
The in camera interview of the 14-year-old child Michelle B.-L. was improperly conductedwithout considering whether there was a need for her to speak in camera (see Matter of Annemarie R., 37 AD3d723 [2007]; Matter of Q.-L. H.,27 AD3d 738 [2006]), without the presence of the mother's legal adviser (see Matterof Christina F., 74 NY2d 532 [1989]; Matter of Deith v Deith, 27 AD3d 649 [2006]; Matter of LeslieC., 224 AD2d 947 [1996]), and without administering an oath (see Matter of RocklandCounty Dept. of Social Servs. [Joseph Z.], 186 AD2d 136 [1992]). Weeks after the in camerainterview, Michelle was asked in open court to swear to the truth of the statements she made incamera—a procedure which failed to impress upon the child the necessity of testifyingtruthfully.
In view of the Family Court's heavy reliance upon the improperly-conducted in camerainterview, the determination of neglect with respect to Michelle must be reversed and the matterremitted to the Family Court, Suffolk County, for a new fact-finding hearing and a newdetermination thereafter before a different judge.
There is no evidence in this record that the mother used excessive corporal punishmentagainst Michelle's siblings. The findings with respect to the siblings were based upon derivativeneglect. However, there is no per se rule that a finding of neglect of one sibling requires a findingof derivative neglect with respect to the other siblings. "The focus of the inquiry . . .is whether the evidence of abuse or neglect of one child indicates a fundamental defect in theparent's understanding of the duties of parenthood" (Matter of Dutchess County Dept. ofSocial Servs. v Douglas E., 191 AD2d 694 [1993]; see Matter of Rasheda S., 183AD2d 770 [1992]). Under the circumstances of this case, the findings of derivative neglect as toMichelle's siblings were unwarranted (see Matter of Isaiah Keith B., 306 AD2d 343[2003]; Matter of Suffolk County Dept. of Social Servs. [Joseph P.], 215 AD2d 486[1995]).
The mother's remaining contentions are without merit. Miller, J.P., Goldstein, Fisher andCovello, JJ., concur.