| Matter of Naomi S. (Hadar S.) |
| 2011 NY Slip Op 06637 [87 AD3d 936] |
| September 29, 2011 |
| Appellate Division, First Department |
| In the Matter of Naomi S., a Child Alleged to be Neglected. HadarS., Appellant; Commissioner of Social Services of the City of New York, Respondent. In theMatter of Uriel S., Respondent, v Hadar S., Appellant, et al., Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), formunicipal respondent. Benjamin Haber, Staten Island, for Uriel S., respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), Attorneyfor the Child.
Order of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on orabout November 30, 2009, which, upon denial of respondent mother's application to dismiss theneglect petition pursuant to Family Court Act § 1051 (c) and a fact-finding determinationthat the mother neglected the subject child, among other things, released the subject child to thecustody of nonrespondent father, and order, same court and Judge, entered on or about November9, 2009, which, to the extent appealed from as limited by the briefs, awarded custody of the childto the father, unanimously affirmed, without costs. Appeal from order, same court [*2]and Judge, entered on or about February 2, 2010, which to theextent appealed from as limited by the briefs, set forth a visitation schedule for respondentmother, unanimously dismissed, without costs, as taken from a nonappealable order. Order, samecourt and Judge, entered on or about February 16, 2010, which, to the extend appealed from aslimited by the briefs, modified the February 2, 2010 order and set forth certain travel andrelocation conditions for petitioner father, unanimously affirmed, without costs. Order, samecourt and Judge, entered on or about April 8, 2010, which granted respondent father's motion todismiss the mother's petition to modify the visitation orders, unanimously affirmed, withoutcosts.
A preponderance of the evidence supports Family Court's finding that the child's physical,mental or emotional condition was in imminent danger of becoming impaired as a result of themother's long-standing history of mental illness and resistance to treatment (see FamilyCt Act § 1046 [b] [i]; § 1012 [f] [i] [B]; Matter of Madeline R., 214 AD2d445 [1995]). The mother testified to multiple extended hospitalizations for mental illness, and therecord showed her lack of insight into her illness and her repeated relapses due to noncompliancewith treatment and medication (seeMatter of Christopher R. [Lecrieg B.B.], 78 AD3d 586, 586-587 [2010]). Family Courtalso properly denied the mother's motion to dismiss the neglect petition pursuant to Family CourtAct § 1051 (c), since the dangers the mother posed to the child had not passed and thus thecourt's continued aid was required (cf.Matter of Eustace B. [Shondella M.], 76 AD3d 428, 428 [2010]).
The totality of the circumstances establishes that the award of custody of the child to herfather was in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167[1982]). The evidence at the consolidated hearing on the disposition of the neglect petition andthe father's custody petition showed that the mother was incapable of caring for the child andcontinued to have a lack of insight about her illness, and that the child is doing well while livingwith her father.
Because the February 2, 2010 visitation order was entered on consent, it is not appealable (see Matter of Reilly v Reilly, 49 AD3d883, 884 [2008]). Family Court did not abuse its discretion when it entered the February 16,2010 visitation order, modifying the February 2, 2010 order, which set forth travel and relocationconditions for petitioner father.
Family Court properly dismissed, without a hearing, the mother's petition to modify thevisitation orders. The mother failed to make an evidentiary showing of changed circumstancessufficient to warrant a hearing (seeMatter of Rodriguez v Hangartner, 59 AD3d 630, 631 [2009]).
We have considered the mother's remaining arguments and find them unavailing.Concur—Andrias, J.P., Friedman, Freedman, Richter and RomÁn, JJ.
The decision and order of this Court entered herein on May 19, [*3]2011 (84 AD3d 608 [2011]) is hereby recalled and vacated(see 2011 NY Slip Op 85284[U] [2011] [decided simultaneously herewith]).