| Matter of Madison B. (Daniel B.) |
| 2014 NY Slip Op 08991 [123 AD3d 1027] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Madison B. Administration forChildren's Services, Respondent; Daniel B., Appellant. |
Helene Bernstein, Brooklyn, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andDrake A. Colley of counsel), for respondent.
Richard L. Herzfeld, New York, N.Y., attorney for the child.
Appeal from an order of fact-finding and disposition of the Family Court, KingsCounty (Ilana Gruebel, J.), dated November 20, 2013. The order, after fact-finding anddispositional hearings, found that the father neglected the subject child and released thechild to the custody of the mother.
Ordered that the order of fact-finding and disposition is affirmed, without costs ordisbursements.
The Administration for Children's Services (hereinafter ACS) commenced thisneglect proceeding, alleging that the father had neglected the subject child. Theallegation of neglect was based in part on a finding of the Family Court that, prior to thesubject child's birth, the father had neglected the subject child's two older siblings.
"In determining whether a child born after underlying acts of abuse or neglect shouldbe adjudicated derivatively abused or neglected, the 'determinative factor is whether,taking into account the nature of the conduct and any other pertinent considerations, theconduct which formed the basis for a finding of abuse or neglect as to one child is soproximate in time to the derivative proceeding that it can reasonably be concluded thatthe condition still exists' " (Matter of Jamarra S. [Jessica S.], 85 AD3d 803, 804[2011], quoting Matter of Cruz, 121 AD2d 901, 902-903 [1986]; see Matter of Elijah O. [MarilynO.], 83 AD3d 1076, 1077 [2011]). If such a showing is made, " 'thecondition is presumed to exist currently and the respondent has the burden of provingthat the conduct or condition cannot reasonably be expected to exist currently or in theforeseeable future' " (Matter of Jamarra S. [Jessica S.], 85 AD3d at 804,quoting Matter of Cruz, 121 AD2d at 903).
Here, the conduct which formed the basis for the Family Court's finding that thefather neglected the subject child's two older siblings was "so proximate in time to [thisproceeding] that it can reasonably be concluded that the condition still exists" (Matterof Jamarra S. [Jessica S.], 85 AD3d at 804; see Matter of Jamel T. [Gemayel T.], 120 AD3d 504[2014]), and the father failed to [*2]complete theprograms mandated by the prior order of disposition relating to the older siblings (see Matter of Shay-Nah FF.[Theresa GG.], 106 AD3d 1398, 1400-1401 [2013]; Matter of Jamarra S. [JessicaS.], 85 AD3d 803 [2011]; Matter of Amber C., 38 AD3d 538 [2007]; Matter ofHannah UU., 300 AD2d 942, 944 [2002]). Thus, ACS demonstrated that the fatherderivatively neglected the subject child, and because the father " 'failed to presentany evidence to either rebut [ACS's] prima facie case or establish that the conditionleading to [the] neglect finding as to the other child[ren] no longer existed,' " thederivative neglect finding was proper (Matter of Jamarra S. [Jessica S.], 85 AD3dat 804-805, quoting Matter of Baby Boy W., 283 AD2d 584, 585 [2001]; seeMatter of Amber C., 38 AD3d at 541; Matter of Cruz, 121 AD2d at902-903).
Furthermore, "[t]he granting of an adjournment for any purpose is a matter restingwithin the sound discretion of the trial court" (Matter of Anthony M., 63 NY2d270, 283 [1984]; see Matter ofSteven B., 6 NY3d 888, 889 [2006]; Matter of Kinara C. [Jerome C.], 89 AD3d 839, 841[2011]), upon " 'a balanced consideration of all relevant factors' "(Matter of Kinara C. [Jerome C.], 89 AD3d at 841, quoting Matter of Sicurella v Embro,31 AD3d 651, 651 [2006]; see Matter of Latrell S. [Christine K.], 80 AD3d 618, 619[2011]). Here, the Family Court providently exercised its discretion in denying theapplication of the father's attorney for an adjournment of the fact-finding anddispositional hearings (seeMatter of N. [Fania D.—Alice T.], 108 AD3d 551, 552-553 [2013]; Matter of Winfield vGammons, 105 AD3d 753, 754 [2013]; Matter of O'Leary v Frangomihalos, 89 AD3d 948, 949[2011]; see also Matter ofSteven B., 24 AD3d 384, 385 [2005], affd 6 NY3d 888 [2006]). Mastro,J.P., Chambers, Sgroi and Miller, JJ., concur.