| Matter of Aiden XX. (Jesse XX.) |
| 2013 NY Slip Op 02124 [104 AD3d 1094] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Aiden XX. and Another, Children Allegedto be Neglected. Tompkins County Department of Social Services, Respondent; JesseXX., Appellant. (And Another Related Proceeding.) |
—[*1] Daniel S. Feder, Tompkins County Department of Social Services, Ithaca, forTompkins County Department of Social Services, respondent. David M. Abbatoy Jr., Rochester, for Chatesha YY., respondent. Donna C. Chin, Ithaca, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Tompkins County(Sherman, J.), entered September 22, 2011, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, toadjudicate respondent's children to be neglected.
Chatesha YY. (hereinafter the mother) is the mother of two sons, Aiden XX. (born in2004) and Jeremiah XX. (born in 2005). Respondent, the biological father of Jeremiah,obtained custody of both children in December 2009. Subsequently, petitioner received achild protective report alleging that, in March 2011, while the children were under hiscare, respondent was arrested in Massachusetts and charged with intent to distributenarcotics, assault and battery on a police officer, resisting arrest and disorderly conduct.It was further reported that the children [*2]were taken toa hospital for treatment of suspected malnutrition and ringworm, at which time one of thechildren reportedly tested positive for marihuana.
As a result of these allegations, petitioner commenced a Family Ct Act article 10proceeding alleging that respondent neglected both children. Family Court grantedpetitioner's motion for summary judgment and issued a fact-finding order adjudicatingboth children to be neglected. In its written decision, the court declined to consider theMassachusetts police and hospital records submitted by petitioner because they were notin admissible form; however, the court found that the general allegations of neglect in thepetition concerning respondent's March 2011 arrest were "amplified" by the court's own"determinations" set forth in its order directing a mental health evaluation.[FN1] Drawing an adverse inference based upon respondent's failure to submit to a mentalhealth evaluation, the court held that, if respondent had obeyed the court's order, theensuing report "would have shown that he suffers from a mental illness and/or otheremotional problems requiring treatment, and that the failure to obtain that treatment hasresulted in him being unable to provide appropriate care and supervision of thechildren."[FN2] Thereafter, following a dispositional hearing chiefly addressing the separate custodypetition brought by the mother, an order of disposition was issued, which, among otherthings, granted custody of the children to the mother. Respondent now appeals from theorder of disposition,[FN3] contending that the court erred in granting summary judgment to petitioner and also indenying his request to proceed pro se in the neglect proceedings.[FN4][*3]
Family Court erred in granting petitioner'smotion for summary judgment on the neglect petition. "To establish neglect, [a]petitioner must prove by a preponderance of the evidence that a child's physical, mentalor emotional condition was harmed or is in imminent danger of harm as a result of afailure on the part of the parent to exercise a minimum degree of care" (Matter of Stevie R. [Arvin R.],97 AD3d 906, 907 [2012] [citations omitted]; see Family Ct Act §1012 [f]). While summary judgment is not routinely invoked in such matters, it is,nonetheless, "an appropriate procedural device to be utilized in a Family Ct Act article 10proceeding where no triable issues of fact exist" (Matter of Tavianna CC. [Maceo CC.], 99 AD3d 1132,1133 [2012], lv denied 20 NY3d 856 [2013]).
On this record, summary judgment was improperly granted. Significantly, thepetition as filed only alleges that respondent neglected the children as a result of theevents surrounding respondent's March 2011 arrest. Nevertheless, Family Court grantedthe petition based on "amplified" allegations of neglect that it found related to the father'salleged untreated mental illness. No amended petition was filed nor was respondentgiven an opportunity to amend his answer. While a court may amend the allegations in aneglect proceeding "to conform to the proof[,] . . . in such case therespondent shall be given reasonable time to prepare to answer the amended allegations"(Family Ct Act § 1051 [b]; see Matter of Kila DD., 28 AD3d 805, 806 [2006]).
Here, as respondent was not given an opportunity to respond to these newallegations, he was denied his right of sufficient notice (see Matter of Blaize F., 50AD3d 1182, 1184-1185 [2008]; Matter of Latifah C., 34 AD3d 798, 800 [2006]; Matterof Shawniece E., 110 AD2d 900, 900-901 [1985]; see also Matter of Burola vMeek, 64 AD3d 962, 964 [2009]; compare Matter of Kila DD., 28AD3d at 806). While such a circumstance can be overlooked if sufficient proof waspresented to sustain the original petition without considering the new allegations (see Matter of Paige AA. [AnthonyAA.], 85 AD3d 1213, 1216 [2011], lv denied 17 NY3d 708 [2011]),such proof was not presented in this case.
Petitioner moved for summary judgment principally relying on the factual evidencesurrounding the events occurring in March 2011, as set forth in the Massachusetts policeand hospital records obtained by a judicial subpoena duces tecum, which included,among other things, a positive drug test result for one of the very young children withspecial needs in respondent's care (see generally Matter of Dakota CC. [Arthur CC.], 78 AD3d1430 [2010]). Family Court correctly found, however, that petitioner failed tosubmit these records in admissible form (see CPLR 4518; see also CPLR3122-a). Thus, the only sources of admissible proof submitted by petitioner were theaffidavits from two of petitioner's caseworkers.[FN5] One of [*4]the affidavits recounts the unsuccessfulattempts to facilitate respondent's psychological evaluation. The other affidavit describes,along with certain hearsay conversations that the caseworker had with Massachusettsauthorities, a brief conversation with respondent wherein he acknowledged that he wasarrested and did not deny that the children were present at the time, nor did he "offer anyexplanation or denial of the positive toxicology of Aiden." Under the circumstances, wecannot conclude that these equivocal statements and silences constituted affirmativeproof of neglect sufficient to satisfy petitioner's initial burden on a summary judgmentmotion (see CPLR 3212 [b]). Accordingly, the matter must be remitted for afact-finding hearing (see Matterof Suzanne RR., 35 AD3d 1012, 1013-1014 [2006]).
Given the above result, it is unnecessary to dwell at any length upon respondent'sfurther claim that a new hearing should be granted because he was improperly denied theright to represent himself in the neglect proceedings (see generally Matter of Kathleen K. [Steven K.], 17 NY3d380 [2011]). Not only did respondent engage in disruptive behavior at the initialremoval hearing that required him to be forcibly escorted from the courtroom, but hisfailure at later appearances to state a rational and unequivocal request to proceed pro seconvinces us that Family Court did not abuse its discretion in assigning counsel. Givenrespondent's periodic disruptive outbursts and failure to complete the ordered mentalhealth evaluation, any concern on the court's part over respondent's competency toproceed pro se was clearly legitimate (see Matter of Anthony K., 11 AD3d 748, 749-750 [2004];see also People v Gilbo, 52AD3d 952, 954-955 [2008], lv denied 11 NY3d 788 [2008]; People vEady, 301 AD2d 965, 966 [2003], lv denied 100 NY2d 538 [2003]; 33Carmody-Wait 2d §§ 184:83, 184:96).
All remaining issues not specifically addressed above have been examined and foundto be unpersuasive or rendered academic under the circumstances.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted petitioner's motion forsummary judgment on the neglect petition; motion denied; matter remitted to the FamilyCourt of Tompkins County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1: Although FamilyCourt's language appears to suggest that the order directing the mental health evaluationconstituted an amendment to the neglect petition, our review of the order does notsupport such an interpretation. No discussion of such additional allegations wereincluded in petitioner's summary judgment motion papers, and respondent was not givenan opportunity to amend his answer or respond to these allegations.
Footnote 2: While petitioner moved,in the alternative to summary judgment, for a default judgment due to respondent'sfailure to comply with the order that he obtain a mental health evaluation, Family Courtdid not find respondent in default. We agree with Family Court that an adverse inferencewas a more appropriate sanction for respondent's conduct than striking his answer andfinding him in default.
Footnote 3: Although the mothercontends that this appeal should be dismissed as untimely because respondent did notappeal the fact-finding order granted on summary judgment, respondent's timely appealfrom the dispositional order "brings up for review all non-final orders that affected thejudgment" (Matter of AmeilliaRR. [Megan SS.—Jered RR.], 96 AD3d 1244, 1245 [2012]; seeCPLR 5501 [a] [1]).
Footnote 4: Any issues regardingthe custody determination or disposition on the neglect petition have been abandoned asa result of the father's failure to address them in his brief (see Matter of Alexis AA. [JohnAA.], 91 AD3d 1073, 1073 n 2 [2012], lv denied 18 NY3d 809 [2012]).
Footnote 5: The attorney for thechildren argues that summary judgment is also supported by the testimony from theremoval hearing (see Family Ct Act § 1027). Petitioner did not referencethis testimony or attach a copy of the transcript to its motion papers, nor did Family Courtstate in its decision that it was relying on this testimony. In any event, the testimonyconsisted mainly of hearsay, which is admissible in a removal hearing but not to supporta fact-finding determination (compare Family Ct Act § 1046 [b]with [c]).