Matter of Vallery P. (Jondalla P.)

2013 NY Slip Op 03610 [106 AD3d 575]

May 21, 2013

Appellate Division, First Department

As corrected through Wednesday, June 26, 2013

In the Matter of Vallery P., a Child Alleged to beNeglected. Jondalla P., Appellant; Administration for Children's Services,Respondent.

—[*1]The Center for Family Representation, Inc., New York (Rebecca Horwitz ofcounsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman ofcounsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Mark DellAquila ofcounsel), attorney for the child.

Order of disposition, Family Court, New York County (Jody Adams, J.), entered onor about March 23, 2012, which, upon on a fact-finding determination, after a hearing,found that respondent father had neglected the subject child, granted custody to themother on consent of the parties, unanimously reversed, on the facts, and in the exerciseof discretion, without costs, the finding of neglect vacated, and the petition dismissed.Appeal from the order of fact-finding, same court and Judge, entered on or about March23, 2012, unanimously dismissed, without costs, as subsumed in the appeal from theorder of disposition.

Although the issue is not preserved, we conclude the court improperly based itsdetermination on claims of medical neglect not raised in the petition, without affordingappellant father a reasonable opportunity to prepare to answer this claim (seeFamily Ct Act § 1051 [b]; Matter of Crystal S. [Elaine S.], 74 AD3d 823, 825 [2dDept 2010]). Moreover, the petitioner failed to demonstrate by a preponderance of theevidence that the child was impaired or at risk of impairment by the father's failure toseek immediate medical attention for a bump on the child's [*2]head, which was not shown to be a significant injury(see Matter of Hofbauer, 47 NY2d 648, 655-656 [1979]; Matter of Samantha M., 56AD3d 299, 300 [1st Dept 2008]). Concur—Tom, J.P., Acosta, Renwick,DeGrasse and Richter, JJ.