| Matter of Kazmir K. |
| 2009 NY Slip Op 04949 [63 AD3d 522] |
| June 16, 2009 |
| Appellate Division, First Department |
| In the Matter of Kazmir K., a Child Alleged to be Neglected.Marcus K., Appellant; Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), LawGuardian.
Order of fact-finding and disposition (one paper), Family Court, New York County (Sara P.Schechter, J.), entered on or about February 21, 2008, which determined that appellant hadneglected his son, Kazmir K., and directed that the child be released to his father's custody, undersupervision of a child protective agency, for a period of one year, unanimously affirmed insofaras it brings up for review the fact-finding determination, and the appeal otherwise dismissed asmoot, without costs.
The law guardian's challenge to the disposition is moot, since the order has expired, alongwith the agency supervision, and Kazmir remains in his father's custody (see Matter of Lashina P., 52 AD3d293, 293 [2008]).
The finding that appellant neglected his son was supported by a preponderance of theevidence (see Family Ct Act § 1046 [b] [i]). The hospital records submittedcomprised clear evidence of a long history of mental illness on the father's part, including priorsuicide attempts (see Matter of Zariyasta S., 158 AD2d 45, 47-48 [1990]). Appellant'sproblems culminated in another suicide attempt on August 7, 2007, which resulted in appellantbeing hospitalized for three days. Despite his history of suicide attempts, including priorhospitalization, appellant made no plans for the care of his 13-year-old son during hishospitalization. This presented an imminent risk of harm to his son, who, unsupervised, quicklyleft the hospital by himself and went to a friend's house (see Lashina P., 52 AD3d at293; Matter of Pedro C., 1 AD3d267, 268 [2003]). The finding of neglect is strengthened by the negative inference properlydrawn against the father from his failure to testify at the fact-finding hearing (see Matter of Daniel D., 57 AD3d444, 444 [2008]; Matter of DevanteS., 51 AD3d 482 [2008]). The father's clear concern for his [*2]son, amply reflected in both the medical records and the testimonyof the Administration for Children's Services child protective specialist, does not obviate the riskof imminent harm posed to his son by his failure to plan (see Matter of Caress S., 250AD2d 490 [1998]). Concur—Tom, J.P., Friedman, Nardelli, Buckley and Abdus-Salaam,JJ.