| Matter of Serenity S. (Tyesha A.) |
| 2011 NY Slip Op 07847 [89 AD3d 737] |
| November 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of Serenity S. Commissioner of the Administration forChildren's Services of the City of New York, Appellant;Tyesha A., Respondent. Keith S., Nonparty Father. |
—[*1] Anya Mukarji-Connolly and Jessica Marcus, Brooklyn, N.Y., for respondent-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel),attorney for the child. Ana Stern, New York, N.Y., for nonparty father.
In a child neglect proceeding pursuant to Family Court Act article 10, the petitioner,Commissioner of the Administration for Children's Services of the City of New York, appeals, aslimited by its brief, from so much of an order of the Family Court, Kings County (Beckoff, J.),dated March 31, 2011, as, after a hearing, denied that branch of its motion which was pursuant toFamily Court Act § 1027 to temporarily remove the subject child from the custody of themother and place the child in its custody pending the outcome of the proceeding.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withoutcosts or disbursements, and that branch of the petitioner's motion which was pursuant to FamilyCourt Act § 1027 to temporarily remove the subject child from the custody of the motherand place the child in its custody pending the outcome of the proceeding is granted.
In this proceeding commenced on February 4, 2011, the petitioner, Commissioner of theAdministration for Children's Services (hereinafter the petitioner), alleges that the motherderivatively neglected the subject child, an infant born in January 2011, based upon prioradjudications that the mother, through her drug use, neglected the child's four older siblings, allof whom are in foster care. The petition alleged that, together with the mother's failure to complywith a drug treatment program, the conduct of the mother that formed the basis of the priorneglect adjudications was so proximate in time to the birth of the child that it could reasonably beconcluded that the condition still existed at the time the child was born. The Family Courttemporarily released [*2]the child to the care of the mother andthe nonparty father.
On the evening of March 29, 2011, the mother and father were involved in an altercation atthe family shelter where they resided with the child, which prompted the petitioner, on thefollowing day, to move, among other things, pursuant to Family Court Act § 1027 totemporarily remove the child from the custody of the mother and place the child in its custodypending the outcome of the proceeding.
At a hearing conducted pursuant to Family Court Act § 1027, the Family Courtdeclined to take judicial notice of the prior neglect adjudications against the mother. Also at thehearing, a shelter supervisor and the mother gave widely disparate accounts of the March 29thincident at the shelter regarding, among other things, the mother's conduct, whether the motherwas physically aggressive and intoxicated while carrying the child, whether the child wasappropriately clothed, and whether the mother brought appropriate provisions for the child whenthe mother abruptly left the shelter with the child that evening. At the conclusion of the hearing,the Family Court found credible the testimony of both the shelter supervisor and the mother,despite their starkly contrasting versions of the March 29th incident. In the order appealed from,the Family Court, inter alia, denied that branch of the petitioner's motion which was totemporarily remove the child from the custody of the mother and place the child in its custodypending the outcome of the proceeding. We reverse the order insofar as appealed from.
The Family Court erred in declining to take judicial notice of the prior orders of neglectagainst the mother with respect to the child's four older siblings (see Family Ct Act§ 1046 [a] [i]; Matter of Nassau County Dept. of Social Servs. v Denise J., 87NY2d 73, 80 [1995]; Matter of KeiraO., 44 AD3d 668, 671 [2007]; Matter of Esther II., 249 AD2d 848, 849 [1998];Matter of Nassau County Dept. of Social Servs. v Laquetta H., 191 AD2d 567, 568[1993]).
A credibility assessment of a hearing court is accorded considerable deference on appealunless it lacks a sound and substantial basis in the record (see Matter of Irene O., 38NY2d 776 [1975]; Matter of Sadiq H.[Karl H.], 81 AD3d 647 [2011]; Matter of Andrew B. [Deborah B.], 73 AD3d 1036 [2010]; Matter of Jennifer R., 29 AD3d1003 [2006]). Where, as here, the Family Court's credibility determination is not supportedby the record, this Court is free to make its own credibility assessments and overturn thedetermination of the hearing court (seeMatter of Chanyae S. [Rena W.], 82 AD3d 1247 [2011]; Matter of Melissa O. [David O.], 73AD3d 783 [2010]; Matter ofSamuel D.-C., 40 AD3d 853, 853-854 [2007]).
Upon review of the record, we conclude that, in light of the four prior neglect adjudicationsagainst the mother, and the shelter supervisor's hearing testimony indicating that, during theMarch 29th incident at the shelter, the mother was physically aggressive and intoxicated whilecarrying the child, the petitioner met its burden of establishing, by a preponderance of theevidence, that the child's life or health would be at imminent risk unless she were removed fromthe custody and care of the mother during the pendency of this proceeding (see Family CtAct § 1027 [a], [b], [d]; Nicholson v Scoppetta, 3 NY3d 357, 368-370 [2004]). Moreover,the evidence adduced at the hearing demonstrated that, during the pendency of this proceeding,the imminent risk to the child's life or health could not be mitigated by reasonable efforts short ofremoval (see Nicholson v Scoppetta, 3 NY3d at 378; Matter of Jesse J., 64 AD3d 598, 599-600 [2009]).
Accordingly, the Family Court should have granted that branch of the petitioner's motionwhich was pursuant to Family Court Act § 1027 to temporarily remove the child from thecustody of the mother and place the child in its custody pending the outcome of the proceeding.Mastro, J.P., Angiolillo, Belen and Lott, JJ., concur.