| Matter of Rosy S. |
| 2008 NY Slip Op 06607 [54 AD3d 377] |
| August 12, 2008 |
| Appellate Division, Second Department |
| In the Matter of Rosy S. Administration for Children's Services,Appellant; Ivelisse T., Respondent. (Proceeding No. 1.) In the Matter of Marcos S., Jr.Administration for Children's Services, Appellant; Ivelisse T., Respondent. (Proceeding No.2.) |
—[*1] Michael S. Somma, Jr., Brooklyn, N.Y., for respondent. Fred A. Wertheimer, Brooklyn, N.Y., attorney for the children.
In two child protective proceedings pursuant to Family Court Act article 10, the petitionerappeals from an order of the Family Court, Kings County (Staton, J.H.O.), dated January 28,2008, which, after a hearing pursuant to Family Court Act § 1028, granted the mother'sapplication to return the subject children to her custody under the petitioner's supervision. Bydecision and order on motion of this Court dated February 14, 2008 [2008 NY Slip Op63600(U)], enforcement of the order was stayed pending hearing and determination of the appeal.
Ordered that the order is reversed, on the law, without costs or disbursements, the mother'sapplication for the return of the subject children is denied, and the matter is remitted to theFamily Court, Kings County, for further proceedings consistent herewith.
At issue here is whether the Family Court properly concluded, after a hearing pursuant [*2]to Family Court Act § 1028, that return of the subjectchildren to the custody of their mother did not pose an imminent risk to their lives or health. Thesubject children are the mother's daughter, born in 1995, and her son, born in 1998. The mother'sfirst born child, a son born in 1993, also was removed from her care, but she is not seeking hisreturn. The catalyst for the removal of the subject children was the mother's admitted sexualinteraction with her first-born son.
In determining whether there is imminent risk to the life or health of children pursuant toFamily Court Act § 1028, the Family Court is required to balance the risk to the childrenshould they be returned to the custody of the parent against the harm that their removal mightcause (see Nicholson v Scoppetta, 3NY3d 357, 378 [2004]). Evidence that the children who are the subject of the proceedingwere previously harmed while in the parent's care is not required where it is shown that theparent demonstrated such an impaired level of parental judgment with respect to one child so asto create a substantial risk of harm to any child in that parent's care (see Matter of Daniel W., 37 AD3d842, 843 [2007]).
Initially, we find that the Family Court should have drawn an adverse inference against themother based upon her failure to testify on her own behalf and in light of the Family Court'sdetermination that she was less than forthcoming with the clinical psychologist whom she calledas an expert witness (see Matter ofHarmony S., 22 AD3d 972 [2005]; Matter of Allen DD., 17 AD3d 740, 743 [2005]). Moreover, theundisputed evidence of sexual interaction between the mother and her first born son, whichevinced the mother's deeply flawed understanding of parental duties and impaired parentaljudgment, supported a finding that the subject children were derivatively abused. Further, thepetitioner indicated that the father of the subject children was willing to assume custody of themif they were not returned to the mother's custody.
Applying the balancing test in Nicholson v Scoppetta (3 NY3d 357 [2004]), it is apparent that thebest interests of the subject children will be served by continuing their removal until additionalfacts are adduced at a full fact-finding hearing. Spolzino, J.P., Lifson, Dickerson and Chambers,JJ., concur.