| Matter of Brianna R. (Marisol G.) |
| 2010 NY Slip Op 07990 [78 AD3d 437] |
| November 9, 2010 |
| Appellate Division, First Department |
| In the Matter of Brianna R., a Child Alleged to be Neglected. Marisol G.,Appellant; Administration for Children's Services, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Steven Banks of counsel), LawGuardian.
Order, Family Court, Bronx County (Monica Drinane, J.), entered on or about September 9,2009, which, upon a fact-finding determination that respondent-appellant mother derivatively neglectedher daughter Brianna R., placed the child in the custody of the Commissioner of Social Services ofBronx County until completion of the next permanency hearing, unanimously affirmed, insofar as itbrings up for review the fact-finding determination, and the appeal otherwise dismissed as moot,without costs.
The Family Court properly determined that petitioner proved by a preponderance of the evidencethat Brianna was derivatively neglected by the mother. Indeed, the conduct which formed the basis ofthe prior neglect finding, namely the mother's leaving her nine-month-old infant in a bathtub with runningwater without adequate supervision, resulting in the infant's death, evinced an impaired level of parentaljudgment so as to create a substantial risk of harm for any child in the mother's care. The 2007drowning incident, which occurred less than two years before the filing of the petition in this case, wasrelatively close in time to the derivative proceeding so that it can reasonably be concluded that themother still lacks parental judgment (compare Matter of Cruz, 121 AD2d 901, 903 [1986], with Matter of Alexis R., 62 AD3d497, 498 [2009]). This single incident of neglect is sufficient to sustain a finding of derivativeneglect (see generally Matter of KaylaW., 47 AD3d 571, 572 [2008]). The Family Court also properly found that the mother failedto prove that her lack of judgment does not exist currently or will not exist in the foreseeable future.
The mother's argument that prior neglect findings from 2005 and 2006 were too remote in time anddid not relate to the allegations of the petition in this case, is unavailing. The Family Court specificallybased its finding of derivative neglect on the 2007 case, and not on the 2005 [*2]and 2006 cases. Accordingly, even if it was improper for the court toadmit evidence of the earlier cases, such error was harmless.
Although the mother completed mandated parenting skills classes, continued random drug testing,and voluntarily received bereavement counseling, the Administration for Children's Services (ACS)caseworker indicated that, at the time the petition was filed, the mother was not willing to exclude thefather from the home even though he never completed a parenting skills course. As noted above, theFamily Court credited the testimony of the ACS caseworker, and there is no basis for disturbing thatcredibility determination. The court properly excluded testimony regarding the mother's willingness,post-petition, to exclude the father from the home. Generally, courts may not consider post-petitionevidence in a Family Court Act article 10 fact-finding hearing.
Even if the court improperly excluded a physician's letter regarding the mother's mental healthevaluation from evidence, it is submitted that the error was harmless. Indeed, contrary to the mother'scontention, the letter was not critical to her case since, as even the mother acknowledges, a mentalhealth evaluation was never required. Moreover, although the court, in its fact-finding decision, orderedthat the mother and father receive mental health evaluations, it did not state that the mother's allegedfailure to obtain such an evaluation was evidence of neglect.
The mother was not deprived of due process or a fair trial when the court noted in its neglectfindings the mother's failure to use a proper bathtub for the now-deceased infant. The petition in thiscase specifically noted the prior finding of neglect against the mother due to the infant's drowning in abathtub while under the mother's care. Accordingly, the mother was on notice of any claims involvingthe prior finding. Even if the mother was not given adequate notice or an opportunity to address theclaim at the fact-finding hearing, the error was harmless given the other evidence of the mother's neglectwhich was alleged in the petition and addressed at the fact-finding hearing, namely her leaving the infantchild in a bathtub with water running and inadequate supervision.
The appeal from the dispositional order is moot. The terms of the order have expired andsubsequent orders finally discharging the subject child to her mother and father have been entered (see Matter of Pearl M., 44 AD3d 348,348 [2007]). Concur—Gonzalez, P.J., Saxe, Nardelli, Richter and RomÁn, JJ.