| Matter of Darren HH. (Amber HH.) |
| 2009 NY Slip Op 08912 [68 AD3d 1197] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Darren HH., a Child Alleged to be a Neglected.Clinton County Department of Social Services, Respondent; Amber HH.,Appellant. |
—[*1] Michael J. Hartnett, Plattsburgh, for respondent. Natalie B. Miner, Law Guardian, Homer.
Kane, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredOctober 24, 2008, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate respondent's child to be neglected.
In November 2007, Family Court found that respondent and her husband neglectedrespondent's four oldest children. While those children were still in petitioner's custody,respondent gave birth to Darren HH. (born in May 2008). Petitioner immediately removed thechild from respondent's care (see Family Ct Act § 1027) and commenced thisproceeding seeking a derivative finding of neglect. Family Court granted the petition andcontinued petitioner's custody of the child. Respondent appeals.
Family Court's determination of derivative neglect was proper. Proof that respondentneglected her other children was admissible to show that she neglected Darren (seeFamily Ct Act § 1046 [a] [i]). A derivative finding of neglect may be warranted if the priorabuse or neglect [*2]finding demonstrates fundamental flaws inparental judgment so as to create a substantial risk of harm for any child in that person's care,and the prior finding was proximate in time to the derivative proceeding making it likely that theconditions contributing to the neglect still exist (see Matter of Hunter YY., 18 AD3d 899, 900 [2005]; see also Matter of Evelyn B., 30 AD3d913, 914-915 [2006], lv denied 7 NY3d 713 [2006]).
Here, the prior finding that respondent neglected her older children was based, in part, uponher refusal to acknowledge that her husband sexually abused one of their daughters andrespondent's continuing relationship with him. The prior finding was entered less than one yearbefore the derivative finding and approximately six months prior to the filing of the instantpetition. Testimony at the fact-finding hearing established that petitioner continued to associatewith her husband, lied to petitioner's employees about that relationship and persisted in her beliefthat he did not abuse any children, despite his admissions to police and criminal proceedings forhis inappropriate touching of two children. Moreover, respondent had violated a prior court orderby permitting her husband to have contact with the children. Additionally, respondent haddifficulty dealing with the five children during supervised visitation. The court could also draw anegative inference against respondent because she did not testify during the fact-finding phase ofthe hearing (see Matter of CollinH., 28 AD3d 806, 809 [2006]; Matter of Amanda RR., 293 AD2d 779, 780[2002]). Considering the proximity of the prior neglect finding, the continuation of theconditions which led to that finding, and the nature of the finding that demonstrated afundamental inability to protect her children from her husband, Family Court did not err inholding that respondent derivatively neglected Darren (see Matter of Evelyn B., 30AD3d at 915; Matter of Hunter YY., 18 AD3d at 900).
Respondent did not object to the admission of postpetition evidence, rendering her challengeto that evidence unpreserved (seeMatter of Daniel JJ., 31 AD3d 930, 930 [2006], lv denied 7 NY3d 714 [2006];compare Matter of Jessica YY., 258 AD2d 743, 747 [1999]). Finally, respondent'srequest for separate visitation with Darren alone, as opposed to visits with all five of her childrentogether, is now moot. Family Court terminated respondent's parental rights to her four oldestchildren in March 2009, leaving Darren as the only child with whom she is entitled to visitation.
Cardona, P.J., Peters, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.