| Matter of Marchella P. (Loretta B.-B.) |
| 2016 NY Slip Op 02371 [137 AD3d 1286] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Marchella P., a Child Alleged to beNeglected. Administration for Children's Services, Respondent; Loretta B.-B. et al.,Appellants, et al., Respondent. (Proceeding No. 1.) In the Matter of Tyeqail E. P., a ChildAlleged to be Abused and Neglected. Administration for Children's Services,Respondent; Loretta B.-B. et al., Appellants, et al., Respondent. (Proceeding No. 2.) Inthe Matter of Tyemel J.P., a Child Alleged to be Abused and Neglected. Administrationfor Children's Services, Respondent; Loretta B.-B. et al., Appellants, et al., Respondent.(Proceeding No. 3.) |
Conti & Keegan P.C., Staten Island, NY (Angela Conti of counsel), forappellant Loretta B.-B.
Jeffrey C. Bluth, Brooklyn, NY, for appellant Tyrone P., Jr.
Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and DianaLawless of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Diane Pazar ofcounsel), attorney for the children.
Appeals from (1) an order of fact-finding of the Family Court, Kings County (IlanaGruebel, J.), dated July 23, 2012, (2) an order of fact-finding of that court dated July 8,2013, and (3) an order of disposition of that court dated March 28, 2014. The order offact-finding dated July 23, 2012, insofar as appealed from, upon granting the petitioner'smotion for summary judgment, found that the maternal grandmother Loretta B.-B.derivatively abused the children Tyemel P. and Tyeqail P. The order of fact-finding datedJuly 8, 2013, after a hearing, found that the father [*2]neglected the children Marchella P., Tyemel P., and TyeqailP., and also derivatively neglected the children Tyemel P. and Tyeqail P. The order ofdisposition, after a hearing, and upon the father's failure to appear at the dispositionalhearing, among other things, directed supervised visitation between the father and thechildren Tyemel P. and Tyeqail P.
Ordered that the appeals from the orders of fact-finding dated July 23, 2012, and July8, 2013, respectively, are dismissed, without costs or disbursements, as those orders weresuperseded by the order of disposition and are brought up for review on the appeal fromthe order of disposition; and it is further,
Ordered that the father's appeal from the order of disposition is dismissed, withoutcosts or disbursements, except with respect to matters which were the subject of contest(see CPLR 5511; Matterof Yu F. [Fen W.], 122 AD3d 761, 762 [2014]); and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
In September 2010, four-year-old Marchella P. died while in the care of her motherand maternal grandmother, Loretta B.-B. (hereinafter the maternal grandmother). Basedupon the autopsy results, the manner of her death was a homicide, and the cause of deathwas child abuse syndrome, acute drug poisoning, blunt impact injuries, and malnutritionwith dehydration. Thereafter, the Administration for Children's Services (hereinafterACS) filed petitions against Marchella P.'s mother and the maternal grandmother,alleging that they abused Marchella P. and derivatively abused her brothers Tyemel P.and Tyeqail P., and that the father neglected Marchella P. and derivatively neglectedTyemel P. and Tyeqail P. ACS further alleged that the father neglected all three childrenbased upon his misuse of marijuana.
Subsequently, the maternal grandmother was convicted of manslaughter in thesecond degree, unlawful imprisonment in the second degree, and endangering thewelfare of a child in connection with Marchella P.'s death. Following her conviction,ACS moved for summary judgment against the maternal grandmother. Her counsel didnot oppose the motion. In an order of fact-finding dated July 23, 2012, the Family Courtfound, inter alia, that the maternal grandmother abused Marchella P., and derivativelyabused Tyemel P. and Tyeqail P. In an order dated July 8, 2013, after a fact-findinghearing, the court found that the father neglected Marchella P., derivatively neglectedTyemel P. and Tyeqail P., and neglected all three children due to his repeated misuse ofmarijuana. After completing a permanency hearing, the Family Court conducted adispositional hearing at which the father failed to appear. In an order of disposition datedMarch 28, 2014, the Family Court directed supervised visitation between the father andTyemel P. and Tyeqail P., and placed those children in the custody of the Commissionerof Social Services until the completion of the next permanency hearing. The maternalgrandmother appeals from the order of fact-finding dated July 23, 2012, and the order ofdisposition, and the father appeals from the order of fact-finding dated July 8, 2013, andthe order of disposition.
Contrary to the maternal grandmother's contentions, she was not deprived of theeffective assistance of counsel. The maternal grandmother's criminal convictions duringthe period of time that Tyemel P. and Tyeqail P. were present in her home and also beingcared for by her demonstrates that any argument her counsel could have made inopposition to summary judgment on the issue of her derivative neglect of those childrenwould have had little or no likelihood of success (see People v Caban, 5 NY3d 143, 152 [2005]; Matter of Assatta N.P. [NelsonL.], 92 AD3d 945, 945 [2012]).
Since the order of disposition appealed from was made upon the father's default,review on his appeal is limited to matters which were the subject of contest in the FamilyCourt (see Matter of Yu F. [FenW.], 122 AD3d 761, 762 [2014]; Matter of Smith v Howard, 113 AD3d 781, 781 [2014]).Moreover, his appeal from so much of the order of disposition as directed supervisedvisitation between the father and Tyemel P. and Tyeqail P. is academic, since that portionof the order of disposition has been superseded by two subsequent orders of the FamilyCourt, both of which [*3]modified the father's visitationwith those children (see Matterof Abigail R. [Ishwardat R.], 125 AD3d 780, 780 [2015]; Matter of Breeyanna S., 52AD3d 342, 342 [2008]). Accordingly, on the father's appeal, review is limited to theFamily Court's findings of neglect and derivative neglect.
ACS demonstrated by a preponderance of the evidence that the father neglectedMarchella P., since the father knew or should have known of the abuse inflicted uponMarchella P. by the mother and maternal grandmother, and failed to take any action toprotect Marchella P. (see Matterof Iouke H. [Terrence H.], 94 AD3d 889, 891 [2012]; Matter of Aliciya R., 56 AD3d784 [2008]; Matter ofAlysha M., 24 AD3d 255, 255 [2005]; Matter of Rayshawn R., 309AD2d 681, 682 [2003]). Moreover, given the father's failure to exercise a minimumdegree of care as to Marchella P., ACS also proved by a preponderance of the evidencethat he derivatively neglected Tyemel P. and Tyeqail P. (see Matter of Ishaq B. [LeaB.], 121 AD3d 889, 889 [2014]; Matter of Harmony M.E. [Andre C.], 121 AD3d 677, 679[2014]; Matter of DanielW., 37 AD3d 842, 843 [2007]; Matter of Diamond K., 31 AD3d 553, 554 [2006]).
Contrary to the father's contention, the Family Court's finding that he neglected allthree children based upon his misuse of marijuana is supported by a preponderance of theevidence (see Family Ct Act § 1046 [a] [iii]). Eng, P.J., Mastro,Leventhal and Miller, JJ., concur.