| Matter of Jamarra S. (Jessica S.) |
| 2011 NY Slip Op 05078 [85 AD3d 803] |
| June 7, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jamarra S. Suffolk County Department of SocialServices, Respondent; Jessica S., Appellant. |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Gary Rosenthal of counsel), forrespondent. Diane B. Groom, Central Islip, N.Y., Attorney for the Child.
In a child neglect proceeding pursuant to Family Court Act article 10, the mother appealsfrom an order of fact-finding and disposition of the Family Court, Suffolk County (Freundlich,J.), dated April 5, 2010, which, after a fact-finding and dispositional hearing, found that themother derivatively neglected the subject child and placed the child under the supervision of theSuffolk County Department of Social Services, subject to certain conditions.
Ordered that the order of fact-finding and disposition is affirmed, without costs ordisbursements.
The subject of this derivative neglect proceeding, Jamarra S., was born approximately eightmonths after a finding of permanent neglect was made against the mother as to the subject child'ssibling. The finding of permanent neglect was based, in part, upon the mother's failure to complywith court-mandated directives to facilitate the return of the sibling to her care and her failure tovisit with the sibling once in foster care.
Jamarra S. (hereinafter the subject child) was born prematurely on August 29, 2009, andsuffered from serious medical complications, including a compromised immune system thatrequired her to remain in the hospital for more than two months following her birth. Shortly afterher birth, the subject child was temporarily removed from the mother's care due, in part, to themother's lack of suitable housing. A petition alleging neglect and derivative neglect wassubsequently filed against the mother. After a fact-finding and dispositional hearing, at which thecaseworker and the mother testified, the Family Court found that the Suffolk County Departmentof Social Services (hereinafter the DSS) had established, by a preponderance of the evidence, thatthe subject child was derivatively neglected. We agree.
In determining whether a child born after underlying acts of abuse or neglect should beadjudicated derivatively abused or neglected, the "determinative factor is whether, taking intoaccount the nature of the conduct and any other pertinent considerations, the conduct whichformed the basis for a finding of abuse or neglect as to one child is so proximate in time to thederivative proceeding that it can [*2]reasonably be concluded thatthe condition still exists" (Matter of Cruz, 121 AD2d 901, 902-903 [1986]; see Matter of Elijah O. [Marilyn O.],83 AD3d 1076 [2011]; Matter ofAmber C., 38 AD3d 538, 541 [2007]; Matter of Baby Boy W., 283 AD2d 584,585 [2001]). "In such a case, the condition is presumed to exist currently and the respondent hasthe burden of proving that the conduct or condition cannot reasonably be expected to existcurrently or in the foreseeable future" (Matter of Cruz, 121 AD2d at 903; see Matter of Elijah O. [Marilyn O.],83 AD3d 1076 [2011]; Matter of Amber C., 38 AD3d at 541; Matter of BabyBoy W., 283 AD2d at 585).
Here, the conduct which formed the basis for the finding of permanent neglect as to thesubject child's older sibling occurred only eight months prior to the subject child's birth.Therefore, the conduct was so proximate in time to this derivative neglect proceeding that it canreasonably be concluded that the condition still exists (see Matter of Amber C., 38 AD3dat 541). "Since the [mother] failed to present any evidence to either rebut the petitioner's primafacie case or establish that the condition leading to that neglect finding as to the other child nolonger existed," the derivative neglect finding was proper (Matter of Baby Boy W., 283AD2d at 585; see Matter of Amber C., 38 AD3d at 541; Matter of Cruz, 121AD2d at 902-903). Additionally, the mother's failure to complete the court-mandated programsordered by the prior order of disposition supports the Family Court's determination (seeMatter of Amber C., 38 AD3d at 541).
The Family Court's order of disposition, which, inter alia, continued the subject child'splacement with the DSS and required the mother to complete, inter alia, a mental healthevaluation and obtain suitable housing, was in the child's best interests (see Family CtAct § 1052 [a] [iii]; § 1055 [b], [c]; § 1056; Matter of Nyece M. [Rommel M.], 83AD3d 718 [2011]). Dillon, J.P., Balkin, Belen and Sgroi, JJ., concur.