| Matter of Austin D. |
| 2009 NY Slip Op 04319 [63 AD3d 1215] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Austin D. and Others, Children Alleged to beNeglected. Clinton County Department of Social Services, Respondent; Melissa D., Appellant.(And Another Related Proceeding.) |
—[*1] Marcel J. Lajoy, Albany, for Wayne G., appellant. John Dee, Clinton County Department of Social Services, Plattsburgh, for respondent. Ivy M. Schildkraut, Law Guardian, Monticello.
Lahtinen, J. Appeals from four orders of the Family Court of Clinton County (Lawliss, J.),entered June 2, 2008 and July 1, 2008, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate Austin D. to be neglected by respondentMelissa D., and issued orders of protection.
Respondent Melissa D. is the mother of three children (born in 1994, 2006 and 2007).Respondent Wayne G. is the father of the two youngest children. After the two youngest childrenwere each born with positive toxicologies for marihuana, petitioner commenced neglectproceedings in January 2008 as to both respondents. The petition as to the mother also includedallegations of neglect, occurring in 2003 and 2004 regarding her oldest child, Austin D.Following a fact-finding hearing, Family Court dismissed the petition against the father in its[*2]entirety and dismissed the petition against the mother insofaras it pertained to the two youngest children. However, Family Court sustained the petitionagainst the mother regarding allegations of neglect of Austin that had occurred in early 2003. Adispositional hearing ensued, after which Family Court continued Austin in the custody of themother, subject to various terms and conditions. The court also issued orders of protectionrequiring, among other things, that each respondent undergo mental health and substance abusetreatment. Respondents appeal.
The mother and the Law Guardian of Austin argue that there was not sufficient evidence ofcurrent unfitness to warrant a finding of neglect regarding Austin where the finding was basedupon an incident that had occurred five years earlier. We have previously observed that, in lightof Family Court's broad mandate to protect children who are subjected to abuse or neglect, "theusual treatment of transgressions by limiting legal prosecutions thereof to a statutory period isunavailing in Family Court petitions" (Matter of Charles DD., 163 AD2d 744, 747[1990]). Nevertheless, "[i]n determining the issue of neglect, the court should consider whether,despite any past deficiency, [the] children are at the time of [the] hearing suffering or likely tosuffer from neglect" (Matter of Nina A.M., 189 AD2d 1010, 1011 [1993] [internalquotations marks and citation omitted]; see Sobie, New York Family Court Practice§ 2:63 [10 West's NY Prac Series 2008]).
Here, the caseworker familiar with the 2003 incident testified that a report was received inFebruary 2003 indicating that the mother had discontinued Austin's medicine for ADHD withoutconsulting the child's pediatrician. The caseworker investigated the report and, while she foundthe mother not to be particularly cooperative, she nonetheless closed the case within two months.She acknowledged that, at the time she closed the case, she did not believe that Austin was beingsubjected to abuse or neglect. Moreover, a caseworker who had worked with the mother near thetime of the 2008 hearing stated that she had sought petitioner's aid in addressing Austin'sbehavioral problems, complied with measures petitioner set forth in the child-care plan, testednegative for drugs and completed a mental health evaluation with no recommendation forfollow-up care. On this record and under the circumstances of this case, the proof regarding theincident occurring in early 2003 was insufficient to form the basis for a neglect finding five yearslater. Both petitions should have been dismissed in their entirety and, thus, all subsequent orders(i.e., the orders of disposition and protection) based on the finding of neglect as to Austin mustalso be reversed.
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the order entered June 2,2008 is modified, on the law and the facts, without costs, by reversing so much thereof assustained the neglect petition as to Austin D.; petition dismissed in its entirety; and, as somodified, affirmed. Ordered that the orders entered July 1, 2008 are reversed, on the law,without costs.