| Matter of Clarissa S.P. (Jaris S.) |
| 2012 NY Slip Op 00378 [91 AD3d 785] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Clarissa S.P. Administration for Children'sServices, Respondent; Jaris S., Appellant. (Proceeding No. 1.) In the Matter of Michael S.P.Administration for Children's Services, Respondent; Jaris S., Appellant. (Proceeding No. 2.) Inthe Matter of Jesus E.P. Administration for Children's Services, Respondent; Jaris S., Appellant.(Proceeding No. 3.) In the Matter of Keyanna H. Administration for Children's Services,Respondent; Jaris S., Appellant. (Proceeding No. 4.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and EllenRavitch of counsel), for respondent.. Todd D. Kadish, Brooklyn, N.Y., attorney for the children.
In four related child neglect proceedings pursuant to Family Court Act article 10, the motherappeals from an order of fact-finding of the Family Court, Kings County (Lim, J.), datedFebruary 9, 2011, which, after a fact-finding hearing, found that she neglected the childrenKeyanna H. and Jesus E.P. and derivatively neglected the children Michael S.P. and Clarissa S.P.
Ordered that the order of fact-finding is affirmed, without costs or disbursements.[*2]
At a fact-finding hearing in a neglect proceeding pursuantto Family Court Act article 10, the petitioner has the burden of proving by a preponderance of theevidence that the subject children were neglected (see Family Ct Act § 1046 [b] [i];Matter of Mariah C. [Frey C.-M.],84 AD3d 1372 [2011]). "[A] party seeking to establish neglect must show . . .first, that a child's physical, mental or emotional condition has been impaired or is in imminentdanger of becoming impaired and second, that the actual or threatened harm to the child is aconsequence of the failure of the parent or caretaker to exercise a minimum degree of care inproviding the child with proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; seeFamily Ct Act § 1012 [f] [i]).
In this case, the petitioner, the Administration for Children's Services, adduced evidence atthe hearing which established that the mother repeatedly left Keyanna H. and Jesus E.P., whowere both less than two years old, without leaving provisions for their care and without leavingany information about her own whereabouts, how long she would be gone, or how she could becontacted. In addition, the evidence showed that the mother engaged in a pattern of abusivebehavior, including acts of domestic violence against the children's great-grandmother, withoutconcern for the presence of Keyanna H. and Jesus E.P., who were rendered visibly upset andwere caused to cry as a result of her belligerent conduct.
The mother chose not to testify at the fact-finding hearing. Under the circumstances, themother's failure to provide any testimony warrants "the strongest inference against [her] that theopposing evidence in the record permits" (Matter of Commissioner of Social Servs. v PhilipDe G., 59 NY2d 137, 141 [1983]; see Matter of Nassau County Dept. of Social Servs. vDenise J., 87 NY2d 73, 79-80 [1995]; Matter of Cantina B., 26 AD3d 327, 327-328 [2006]; Matter of LeVonn G., 20 AD3d530, 531 [2005]; Matter of Joseph C., 297 AD2d 673 [2002]). Contrary to themother's contention, the finding of neglect against her was supported by a preponderance of theevidence, which demonstrated actual or imminent harm to both Keyanna H. and Jesus E. P. as aresult of her failure to exercise a minimal degree of care (see Family Ct Act § 1012[f]; Nicholson v Scoppetta, 3 NY3d at 368; see also Matter of Andrew Y., 44 AD3d 1063, 1064 [2007];Matter of Victor V., 261 AD2d 479, 479-480 [1999]).
The Family Court's finding of derivative neglect of the children Michael S.P. and ClarissaS.P., was also appropriate. A preponderance of the evidence demonstrated that the neglect ofKeyanna H. and Jesus E.P. was " 'so proximate in time to the derivative proceeding that it canreasonably be concluded that the condition still exist[ed]' " (Matter of Baby Boy W., 283AD2d 584, 585 [2001], quoting Matter of Cruz, 121 AD2d 901, 902-903 [1986]; seeFamily Ct Act § 1046 [a] [i]), and that the neglect of Keyanna H. and Jesus E.P.evinced a "fundamental defect in [the mother's] understanding of the duties of parenthood"(Matter of Dutchess County Dept. of Social Servs. v Douglas E., 191 AD2d 694, 694[1993]). Since the mother presented no evidence that the circumstances giving rise to the neglectof Keyanna H. and Jesus E.P. no longer existed, the Supreme Court properly made a finding ofderivative neglect with respect to Michael S.P. and Clarissa S.P. (see Matter of Amber C., 38 AD3d538, 540 [2007]; Matter of Dutchess County Dept. of Social Servs. v Douglas E.,191 AD2d at 694). Skelos, J.P., Hall, Austin and Miller, JJ., concur.