| Matter of Keith H. (Logann M.K.) |
| 2014 NY Slip Op 00462 [113 AD3d 555] |
| January 28, 2014 |
| Appellate Division, First Department |
| In the Matter of Keith H., Jr., a Child Alleged to beNeglected. Logann M.K., Appellant; Administration for Children's Services of the Cityof New York Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg ofcounsel), for respondent. Karen Freedman, Lawyers for Children, INC., New York (Shirim Nothenberg ofcounsel), attorney for the child.
Order of fact-finding and disposition, Family Court, New York County (JodyAdams, J.), entered on or about November 28, 2012, which, following a fact-findinginquest and based upon a prior fact-finding determination that respondent mother hadinflicted excessive corporal punishment against two of the child's older siblings,determined that respondent derivatively neglected the subject child, Keith H., Jr., andplaced him into the care and custody of petitioner, the Commissioner of theAdministration for Children's Services, unanimously affirmed, without costs.
Contrary to respondent's contentions the record is sufficiently complete to allow thisCourt to make an independent factual review and draw its own conclusions as to whetherthe child is a derivatively neglected child (see Matter of Allen v Black, 275AD2d 207, 209-210 [1st Dept 2000]).
The record demonstrates by a preponderance of the evidence that respondent posedan imminent danger of harm to the child, even though he was not abused by her, becausethere are prior orders finding that she had neglected and derivatively neglected her otherchildren by inflicting excessive corporal punishment upon two of the child's siblings (see Matter of Andre B. [WilnerG.B.], 91 AD3d 411, 412 [1st Dept 2012]; Matter of Ameena C. [Wykisha C.], 83 AD3d 606, 607 [1stDept 2011]). The prior orders finding neglect, rendered before the child was born, wereaffirmed on appeal (Matter ofJeremy H. [Logann K.], 100 AD3d 518 [1st Dept 2012]), and supported afinding of derivative neglect as to all other siblings (see Matter of Jacob H. [Logann K.], 94 AD3d 628 [1stDept 2012], lv dismissed 19 NY3d 952 [2012]).
Moreover, the instant petition was filed within four months after the Family Court's[*2]finding of neglect as to the child's older siblings, andrespondent does not argue that the neglect finding was too remote in time to the instantproceeding to support a reasonable conclusion that the condition still exists (see Matter of Camarrie B. [MariaR.], 107 AD3d 409 [1st Dept 2013]; Matter of Kylani R. [Kyreem B.], 93 AD3d 556, 557 [1stDept 2012]; Matter of Cruz, 121 AD2d 901, 902-903 [1st Dept 1986]).
The facts that respondent had completed a court-ordered mental health evaluation,parenting skills and anger management programs, and participated in regular visitationwith the child and his siblings before the instant proceeding commenced does notpreclude a finding of derivative neglect (see Matter of Jason G., 3 AD3d 340 [1st Dept 2004], lvdenied 2 NY3d 702 [2004]). Despite an otherwise good relationship betweenrespondent and her children, her inability to acknowledge her previous behavior supportsthe conclusion that she has a faulty understanding of the duties of parenthood sufficientto infer an ongoing danger to the subject child (see Matter of Umer K., 257AD2d 195, 199 [1st Dept 1999]). Moreover, respondent tried to hide from petitioner thefact that she had given birth to the subject child while the previous neglect proceedingsagainst her were still pending, which demonstrates she continues to have a faultyunderstanding of her duties as a parent.
Contrary to respondent's contention, the Family Court stated on the record that it wasentering a finding of neglect as to the subject child based upon the testimony ofpetitioner's two caseworker witnesses and on the four exhibits submitted in evidenceduring the fact-finding hearing, which do not involve post-petition events.
Given the failure of counsel to offer any explanation for respondent's absence, theFamily Court providently exercised its discretion in initially denying the application foran adjournment (see Matter ofAngie N.W. [Melvin A.W.], 107 AD3d 907, 908-909 [2d Dept 2013]).Respondent's reliance upon Family Court Act § 262 (a) is misplaced under thecircumstances presented here, because the record demonstrates that she was representedby substitute counsel while her assigned counsel was absent. Respondent has failed todemonstrate that she was prejudiced by the court's determination that it would proceedwith the fact-finding hearing by inquest, because the record demonstrates that oncerespondent arrived at the hearing, the court adjourned the matter and her assignedcounsel was able to review the transcript and had the opportunity to cross-examine thewitness who had testified while counsel was absent.
The Family Court did not abuse its discretion by denying the child's maternal aunt'sapplication to have custody of the child returned to her, based on evidence that she had a[*3]tumultuous relationship with respondent and that thechild was doing well in his current home. Lastly, respondent does not assert that therewas a material change in circumstances warranting reassessment of the child'snonkinship foster placement. Concur—Acosta, J.P., Saxe, Moskowitz andFeinman, JJ.