| Matter of Kinara C. (Jerome C.) |
| 2011 NY Slip Op 08145 [89 AD3d 839] |
| November 9, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kinara C. Administration for Children's Services,Respondent; Jerome C., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andAlyse Fiori of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel),Attorney for the Child.
In a child neglect proceeding pursuant to Family Court Act article 10, the father appeals froma fact-finding order of the Family Court, Queens County (McGowan, J.), dated April 6, 2010,which, after a hearing, found that he had neglected the subject child.
Ordered that the fact-finding order is affirmed, without costs or disbursements.
At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to Family Court Actarticle 10, a petitioner has the burden of proving by a preponderance of the evidence that thesubject child was abused and/or neglected (see Family Ct Act § 1046 [b] [i]; Matter of Ndeye D. [Benjamin D.], 85AD3d 1026, 1027 [2011]; Matter ofMariah C. [Frey C.-M.], 84 AD3d 1372 [2011]). Contrary to the father's contention, theFamily Court's determination that he had neglected the subject child was supported by apreponderance of the evidence. Family Court Act § 1012 defines a neglected child as, interalia, a child "whose physical, mental or emotional condition has been impaired or is in imminentdanger of becoming impaired as a result of the failure of his [or her] parent. . . to exercise a minimum degree of care . . . in supplying the childwith adequate . . . medical . . . care, though financially able to do so"(Family Ct Act § 1012 [f] [i] [A]). Here, the evidence produced at the fact-[*2]finding hearing established that the child's physical condition wasimpaired, or placed in imminent danger of becoming impaired, by the father's failure to assist thechild in monitoring her diabetes and administering her insulin medication, after he had beenrepeatedly advised by medical professionals that the child needed supervision in these tasks toensure her compliance with the prescribed medical regimen (see Matter of Jamiar W. [Malipeng W.], 84 AD3d 1386, 1387[2011]; Matter of John H.M., 54AD3d 763, 764 [2008]; Matter ofAndrei S., 47 AD3d 721 [2008]; Matter of William AA., 24 AD3d 1125, 1126 [2005]; Matter of LeVonn G., 20 AD3d530, 530-531 [2005]). Furthermore, the Family Court's finding of neglect was supported bythe evidence, which demonstrated that the father permitted the child to miss 8 of 21 medicalappointments for the management of her diabetes between July 2008 and March 2009, duringwhich time she was caused to be hospitalized on three occasions because of elevated bloodglucose levels (see Matter of NotoriousYY., 33 AD3d 1097, 1098 [2006]; Matter of Amanda M., 28 AD3d 813, 815 [2006]; Matter ofJoyce SS., 234 AD2d 797, 799 [1996]; cf. Matter of Elijah Q., 36 AD3d 974, 976 [2007]). The allegationsof neglect were further corroborated by evidence establishing that the father failed to ensure thatthe child's prescribed medication and diabetic monitoring devices were available for her use(cf. Matter of Elijah Q., 36 AD3d at 976; cf. also Matter of Annastasia C. [Carol C.], 78 AD3d 1579, 1581[2010]).
Contrary to the father's contention, he was not prejudiced by the Family Court's decision toincorporate into the fact-finding hearing the evidence adduced at a prior hearing, held pursuant toFamily Court Act § 1028 (hereinafter the 1028 hearing), such that reversal of the finding ofneglect is warranted. Initially, the father is correct that the Family Court erred in incorporatinginto the fact-finding hearing the testimony from the 1028 hearing, without first determining thatthe witnesses were unavailable (see CPLR 4517 [a] [3]; Matter of Dillon S., 249AD2d 984 [1998]; Matter of Raymond J., 224 AD2d 337, 337-338 [1996]; Matter ofChristina A., 216 AD2d 928 [1995]; see also Matter of N. Children [Angela N.], 86 AD3d 572, 573[2011]). However, since the evidence produced at the fact-finding hearing was sufficient,standing alone, to support the Family Court's finding of neglect, the error was not prejudicial tothe father and, therefore, does not require reversal (see generally Matter of Beth M. v Susan T., 81 AD3d 1396,1396-1397 [2011]; Matter of Mingo vBelgrave, 69 AD3d 859, 860 [2010]; Matter of Taylor v Taylor, 62 AD3d 1015, 1016 [2009]).
Furthermore, the Family Court providently exercised its discretion in denying the applicationof the father's attorney for an adjournment of the fact-finding hearing. Family Court Act §1048 (a) provides, in relevant part, that "[t]he court may adjourn a fact-finding hearing. . . for good cause shown . . . on motion of . . . the parentor other person legally responsible for the care of the child." "The granting of an adjournment forany purpose is a matter resting within the sound discretion of the trial court" (Matter ofAnthony M., 63 NY2d 270, 283 [1984]; see Matter of Steven B., 6 NY3d 888, 889 [2006]), upon "abalanced consideration of all relevant factors" (Matter of Sicurella v Embro, 31 AD3d 651 [2006]; see Matter of Latrell S. [Christine K.],80 AD3d 618, 619 [2011]; Matterof Venditto v Davis, 39 AD3d 555 [2007]). Here, the Family Court providentlyexercised its discretion in denying the application for an adjournment as the father's attorneyfailed to offer any explanation for the father's absence on the final two days of the fact-findinghearing (see Matter of Sanaia L. [CoreyW.], 75 AD3d 554, 555 [2010]; Matter of Dakota B. [Brigitta B.], 73 AD3d 763 [2010]; Matter of Holmes v Glover, 68 AD3d868, 869 [2009]). Rivera, J.P., Eng, Belen and Austin, JJ., concur.