| Matter of Jeremiah I.W. (Roger H.W.) |
| 2014 NY Slip Op 02064 [115 AD3d 967] |
| March 26, 2014 |
| Appellate Division, Second Department |
| In the Matter of Jeremiah I.W. Administration forChildren's Services, Respondent; Roger H.W., Jr., Appellant. (Proceeding No. 1.) In theMatter of Navaeh V.W. Administration for Children's Services, Respondent; RogerH.W., Jr., Appellant. (Proceeding No. 2.) In the Matter of Elijah B. Administration forChildren's Services, Respondent; Roger H.W., Jr., Appellant. (Proceeding No.3.) |
—[*1] Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Susan P. Greenberg of counsel), for respondent. Jennifer Hersh, Jamaica, N.Y., attorney for the child Jeremiah I.W.
In three related child protective proceedings pursuant to Family Court Act article 10,the father appeals (1) from a fact-finding order of the Family Court, Queens County(Arias, J.), dated March 20, 2013, which granted the petitioner's motion for summaryjudgment on the issue of whether he derivatively neglected the child Jeremiah I.W., and(2), as limited by his brief, from so much of an order of disposition of the same court(Arias, J.), also dated March 20, 2013, as, upon the fact-finding order, inter alia, releasedthe child Jeremiah I.W. to the mother's custody.
Ordered that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the order of disposition and isbrought up for review on the appeal from the order of disposition; and it is further,
Ordered that the order of disposition is affirmed insofar as appealed from, withoutcosts or disbursements.[*2]
The father is the person legally responsible forthe care of Elijah B., and the biological parent of Navaeh V.W. and Jeremiah I.W. OnJanuary 8, 2013, the petitioner, Administration for Children's Services (hereinafter ACS),filed petitions alleging that the father neglected Elijah and Navaeh by perpetrating acts ofdomestic violence against the mother in the presence of the child or children since 2010and as recently as December 3, 2012. The petitions further alleged that on December 7,2012, the father pleaded guilty to attempted assault in the third degree, admitting that heattempted to assault the mother with the intent to cause physical injury (see PenalLaw §§ 110.00, 120.00 [1]) based on the incident on December 3, 2012.
On January 9, 2013, the father consented to the jurisdiction of the Family Courtpursuant to Family Court Act § 1051 (a), and on January 10, 2013, a finding ofneglect was entered against the father with respect to Elijah and Navaeh. Within a monthof the birth of Jeremiah on January 23, 2013, ACS filed a petition alleging that the fatherderivatively neglected Jeremiah, and subsequently moved for summary judgment basedon the prior finding of neglect as to the other children. The father opposed the motion.The Family Court granted the motion and entered an order of fact-finding dated March20, 2013, finding that the father had derivatively neglected Jeremiah. On the same date,the court entered an order of disposition as to all three children, inter alia, releasing thechildren to the mother's custody, with agency supervision, and directing the father tocomplete a batterer's intervention program. On appeal, the father challenges the FamilyCourt's findings and order of disposition with respect to Jeremiah only.
While "proof of the abuse or neglect of one child shall be admissible evidence on theissue of the abuse or neglect of any other child of, or the legal responsibility of, therespondent" (Family Ct Act § 1046 [a] [i]), "there is no per se rule that a finding ofneglect of one sibling requires a finding of derivative neglect with respect to the othersiblings" (Matter of AndrewB.-L., 43 AD3d 1046, 1047 [2007]; see Matter of Elijah O. [Marilyn O.], 83 AD3d 1076[2011]; Matter of Dutchess County Dept. of Social Servs. v Douglas E., 191AD2d 694 [1993]). "The focus of the inquiry to determine whether derivative neglect ispresent is whether the evidence of abuse or neglect of one child indicates a fundamentaldefect in the parent's understanding of the duties of parenthood. Such flawed notions ofparental responsibility are generally reliable indicators that a parent who has abused onechild will place his or her other children at substantial risk of harm" (Matter ofDutchess County Dept. of Social Servs. v Douglas E., 191 AD2d at 694 [citationsomitted]).
Further, "[i]n determining whether a child born after the underlying acts of abuse orneglect should be adjudicated derivatively abused or neglected, the determinative factoris whether, taking into account the nature of the conduct and any other pertinentconsiderations, the conduct which formed the basis for a finding of abuse or neglect as toone child is so proximate in time to the derivative proceeding that it can reasonably beconcluded that the condition still exists. In such a case, the condition is presumed to existcurrently and the respondent has the burden of proving that the conduct or conditioncannot reasonably be expected to exist currently or in the foreseeable future" (Matterof Elijah O. [Marilyn O.], 83 AD3d at 1077 [internal quotation marks and citationsomitted]; see Matter of Baby Boy W., 283 AD2d 584 [2001]).
The Family Court properly concluded that the neglect of Elijah and Navaeh evinceda "fundamental defect in [the father's] understanding of the duties of parenthood" (Matter of Clarissa S.P. [JarisS.], 91 AD3d 785, 786 [2012] [internal quotation marks omitted]; see Matter of Jaden J. [ErnestC.], 106 AD3d 822 [2013]; Matter of Astrid C., 43 AD3d 819 [2007]) and that theneglect of Elijah and Navaeh was "so proximate in time to the derivative proceeding thatit can reasonably be concluded that the condition still exist[ed]" (Matter of Baby BoyW., 283 AD2d at 585 [internal quotation marks omitted]; see Matter of Jaden J.[Ernest C.], 106 AD3d at 822; Matter of Clarissa S.P. [Jaris S.], 91 AD3d at785; Matter of Jamarra S.[Jessica S.], 85 AD3d 803 [2011]; Family Ct Act § 1046 [a] [i]).
Since the father failed to present any evidence to either rebut the petitioner's primafacie case or establish that the condition leading to the neglect finding as to the otherchildren no longer existed, the derivative neglect finding was proper (see Matter of Alyssa WW. [CliftonWW.], 106 AD3d 1157 [2013]; Matter of Jamarra S. [Jessica S.], 85AD3d at 804-805; Matter of Baby Boy W., 283 AD2d at 585). Dickerson, J.P.,Chambers, Austin and Sgroi, JJ., concur.