| Matter of Angel L.H. (Melissa H.) |
| 2011 NY Slip Op 04947 [85 AD3d 1637] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Angel L.H., an Infant. Chautauqua CountyDepartment of Social Services, Respondent; Melissa H., Appellant, et al.,Respondent. |
—[*1] Jane E. Love, Mayville, for petitioner-respondent. Nancy A. Dietzen, Attorney for the Child, Fredonia, for Angel L.H.
Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), enteredJune 18, 2010 in a proceeding pursuant to Family Court Act article 10. The order, among otherthings, adjudged that respondent Melissa H. had neglected her daughter.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent motherappeals from an order determining that she derivatively neglected the subject child. Because themother did not object to the admission of postpetition evidence, her present challenge to thatevidence is unpreserved for our review (see Matter of Darren HH. [Amber HH.], 68 AD3d 1197, 1198[2009], lv denied 14 NY3d 703 [2010]). In any event, although "petitioner should havemoved to amend the petition, [inasmuch as] this evidence was received without objection by[either] respondent, we exercise our power, in the interest of justice, to sua sponte conform thepetition to the evidence" (Matter of Amanda RR., 293 AD2d 779, 780 [2002]).
Contrary to the mother's further contention, Family Court's finding of derivative neglect issupported by the requisite preponderance of the evidence (see Family Ct Act §1046 [b] [i]). It is well settled that a derivative finding of neglect is warranted where, as here, themother's neglect of the subject child " 'is so closely connected with the care of another child as toindicate that the [subject] child is equally at risk' " (Matter of A.R., 309 AD2d 1153,1153 [2003], quoting Matter of Marino S., 100 NY2d 361, 374 [2003], cert denied540 US 1059 [2003]). We agree with the court that the nature, duration, and circumstancessurrounding the neglect of the mother's other children " 'can be said to evidence fundamentalflaws in the [mother's] understanding of the duties of parenthood' " (Matter of Cadejah AA., 33 AD3d1155, 1157 [2006]), justifying the finding that the mother derivatively neglected the subject[*2]child. Present—Scudder, P.J., Smith, Carni, Sconiersand Green, JJ.