| Matter of Dana T. (Anna D.) |
| 2010 NY Slip Op 02187 [71 AD3d 1376] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Dana T. Onondaga County Department of SocialServices, Respondent; Anna D., Appellant. |
—[*1] Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of counsel), forpetitioner-respondent. Patrick Haber, Law Guardian, Syracuse, for Dana T.
Appeal from an order of the Family Court, Onondaga County (Bryan R. Hedges, J.), enteredJanuary 12, 2009 in a proceeding pursuant to Family Court Act article 10. The order, amongother things, adjudicated respondent's child to be a neglected child.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: Respondent mother appeals from an order that adjudicated her child to be aneglected child based on a finding of derivative neglect. We note at the outset that the mothercontends that Family Court erred in failing to conduct a hearing within three court days withrespect to her application pursuant to Family Court Act § 1028. Although her contention ismoot, we agree with the mother that the court erred inasmuch as no good cause wasdemonstrated for the delay (see Matter of Sara L., 249 AD2d 23 [1998], lvdenied 92 NY2d 816 [1998]). We further agree with the mother that the court erred infinding that she derivatively neglected her child, and we therefore reverse the order and dismissthe petition. In order "[t]o sustain a finding of derivative neglect, the prior finding must be soproximate in time to the derivative proceeding so as to enable the factfinder to reasonablyconclude that the condition still exists" (Matter of Landon W., 35 AD3d 1139, 1141 [2006]). The motherconsented to a prior adjudication of neglect with respect to her two other children based on, interalia, the condition of her home and her failure to obtain medical treatment for the children. Fiveyears later, the child at issue herein was born, and petitioner commenced this proceeding withrespect to that child. We conclude under the circumstances of this case that the prior adjudicationof neglect was too remote in time to sustain the court's finding of derivative neglect (see Matter of Alexis R., 62 AD3d497, 497-498 [2009]; Matter of Isaiah Keith B., 306 AD2d 343 [2003]; cf. Matter of Ahmad H., 46 AD3d1357 [2007], lv denied 12 NY3d 715 [2009]; Matter of Justice T., 305AD2d 1076 [2003], lv denied 100 NY2d 512 [2003]). In addition, the evidence presentedat the hearing failed to establish that the conditions that led to the prior neglect adjudicationcurrently exist and can reasonably be expected to exist in the foreseeable future (cf. Matter of Amber C., 38 AD3d538, 540-541 [2007], lv denied 8 NY3d 816 [2007], lv dismissed 11 NY3d728 [2008]; [*2]Justice T., 305 AD2d 1076 [2003]). Thewitnesses presented by petitioner had either no contact or very limited contact with the mother inthe 2½ years prior to the birth of the child at issue, and thus they were unable to providetestimony with respect to the current living situation of the mother or her current understandingof her parental duties and responsibilities. Indeed, the mother presented several witnesses whotestified that, when this proceeding was commenced, the mother's home was clean, that themother had attended all prenatal appointments for the child at issue, and that she was equippedwith the skills necessary to be a good parent. Present—Scudder, P.J., Centra, Fahey andGreen, JJ.