| Matter of Andre G. |
| 2009 NY Slip Op 05705 [64 AD3d 913] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Andre G., a Child Alleged to be Neglected.Schoharie County Department of Social Services, Respondent; Anthony G., Appellant.(Proceeding No. 1.) In the Matter of Alexsandr G. and Another, Children Alleged to beNeglected. Schoharie County Department of Social Services, Respondent; Jundell H., Appellant.(Proceeding No. 2.) In the Matter of Alexsandr G. and Another, Children Alleged to beNeglected. Schoharie County Department of Social Services, Respondent; Anthony G.,Appellant. (Proceeding No. 3.) |
—[*1] Cynthia Feathers, Saratoga Springs, for Jundell H., appellant. David P. Lapinel, Schoharie County Department of Social Services, Schoharie, forSchoharie County Department of Social Services, respondent. Christopher I. Simser, Law Guardian, Binghamton.
Rose, J. Appeals from orders of the Family Court of Schoharie County (Bartlett III, J.),entered February 27, 2008, March 12, 2008 and March 19, 2008, which, among other things,granted petitioner's applications, in proceedings pursuant to Family Ct Act article 10, toadjudicate the subject children to be neglected.
Respondents Jundell H. (hereinafter the mother) and Anthony G. (hereinafter the father) arethe unmarried parents of Andre G. (born in 2004). Family Court found that the father hadneglected Andre as the result of an incident of domestic violence that occurred in Andre'spresence in 2005.[FN1]The court placed Andre in petitioner's custody and ordered the father to stay away from the"home of Andre." In April 2006, the mother gave birth to Alexsandr G., who is not the father'sbiological child. In September 2006, petitioner filed petitions against the mother and the fatheralleging, among other things, that Alexsandr was neglected because the father had been allowedto have contact with him. These petitions were later amended to include a second child, AlanahG., who was born to the mother in May 2007 during the pendency of these proceedings. Ahearing was held, and Family Court determined that Alexsandr and Alanah were derivativelyneglected. As limited by their briefs on appeal, the mother and father now challenge only thefindings of derivative neglect as to Alexsandr and Alanah in the orders of disposition enteredMarch 12, 2008 and March 19, 2008.[FN2]
As for the mother's appeal, our review of the record reveals that there is no evidence of anessential element of derivative neglect, namely, that she had neglected any of her other children(see Family Ct Act § 1046 [a] [i]; Matter of Sidney FF., 44 AD3d 1121, 1122 [2007]; Matter of Ian H., 42 AD3d 701,704 [2007], lv denied 9 NY3d 814 [2007]; Matter of Evelyn B., 30 AD3d 913, 914-915 [2006], lvdenied 7 NY3d 713 [2006]). The earlier order adjudicating [*2]Andre to be neglected found neglect only by the father and, in thecurrent proceedings, Family Court made no finding that the mother had neglected any of herchildren in the past. Inasmuch as there is no showing of the mother's neglect as to Andre, "therecan be no finding of derivative neglect as to" Alexsandr and Alanah (Matter of Desmond LL., 61 AD3d1309, 1310 [2009]).
As for the father, we note that the testimony at the fact-finding hearing established that hisoffending conduct was merely being with the mother and her children other than Andre. Andrehad been removed from the mother's home at the time and was residing elsewhere with his fosterfamily. Accordingly, the record before us fails to show that the father's actions violated the orderdirecting him to stay away from the "home of Andre." In any event, contrary to Family Court'sholding, proof of violation of an order of protection is not sufficient, by itself, to establishneglect (see Family Ct Act § 1012 [f] [i]; Matter of Shannon ZZ., 8 AD3d 699, 701 [2004]). Given this,there is insufficient proof in this record that the two younger children were exposed to asubstantial risk of harm by being in the father's presence. Thus, neither child can be viewed asderivatively neglected by the father.[FN3]
Finally, we note that the record reveals irregularities as to whether the relevant orders ofprotection were in effect when the father was found to be with the mother and whether themother was properly found to have violated a prior order after Family Court deemed her not tobe a respondent in the violation proceeding. These issues and others, however, have beenrendered academic by our determination.
Mercure, J.P., Kane, Kavanagh and Garry, JJ., concur. Ordered that the order enteredFebruary 27, 2008 is affirmed, without costs. Ordered that the orders entered March 12, 2008and March 19, 2008 are reversed, on the law, without costs, and neglect petitions with respect toAlexsandr G. and Alanah G. are dismissed.
Footnote 1: Family Court's order, whichapparently was entered in January 2006, is not included in the record.
Footnote 2: Although the father indicates inhis notice of appeal that he is appealing a February 27, 2008 order, said order does not appear inthe record and it appears the father has raised no arguments with respect thereto. As such, wedeem the appeal from this order abandoned.
Footnote 3: Moreover, the father is neitherthe biological parent of, nor otherwise legally responsible for, Alexsandr (see Family CtAct § 1046 [a] [i]; Matter of Austin JJ., 232 AD2d 736, 737 [1996]).