Admin. for Children's Servs. v. Jesse W. (In re Jesse W.)
| Decision Date | 02 December 2020 |
| Docket Number | Docket Nos. N-22880-17, N-22881-17,2019–08628,2019-08629 |
| Citation | 189 A.D.3d 848,136 N.Y.S.3d 117 |
| Parties | In THE MATTER OF JESSE W. (Anonymous). Administration for Children's Services, respondent; v. Jesse W. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Aja W. (Anonymous). Administration for Children's Services, respondent; v. Jesse W. (Anonymous), appellant. (Proceeding No. 2) |
| Court | New York Supreme Court — Appellate Division |
Cheryl Charles–Duval, Brooklyn, NY, for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Scott Shorr and Eric Lee of counsel), for respondent.
Seth Arthur Myles, Brooklyn, NY, attorney for the children.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, BETSY BARROS, PAUL WOOTEN, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) a decision of the Family Court, Richmond County (Alison M. Hamanjian, J.), dated January 16, 2019, and (2) an order of disposition of the Family Court, Kings County (Erik S. Pitchal, J.), dated May 31, 2019. The order of disposition, upon an order of fact-finding dated January 30, 2019, finding that the father neglected the subject children, released the children to the mother's care and placed the father under the supervision of the Administration for Children's Services for a period of 12 months.
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
By petitions dated August 18, 2017, the Administration for Children's Services (hereinafter ACS) alleged that the father had neglected the subject children. Following a fact-finding hearing, in a written decision, the Family Court found that the father had neglected the children. In an order of fact-finding, the court adjudged the children to be neglected children. In an order of disposition, the court released the children to the mother's care and placed the father under the supervision of ACS for a period of 12 months. The father appeals from the decision and from the order of disposition.
The appeal from the decision must be dismissed, as no appeal lies from a decision (see Matter of Ariana M. [Edward M.] , 179 A.D.3d 923, 923, 118 N.Y.S.3d 215 ). The appeal from so much of the order of disposition as released the children to the mother's care and placed the father under the supervision of ACS for a period of 12 months must be dismissed as academic, as those portions of the order have expired (see Matter of Ava A. [Steven A.] , 179 AD3d 666, 667, 116 N.Y.S.3d 328 ). However, because the adjudication of neglect constitutes a permanent and significant stigma that might indirectly affect the father's status in future proceedings, the appeal from so much of the order of disposition as brings up for review the finding of neglect is not academic (see id. ).
In a child neglect proceeding under Family Court Act article 10, the petitioner must establish by a preponderance of the evidence that the subject child is neglected (see Family Court Act § 1046[b][i] ; Matter of Kailey Z. [Nancy Z] , 185 A.D.3d 832, 833–834, 126 N.Y.S.3d 740 ). A neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent ... to exercise a minimum degree of care" due to, inter alia, "misusing a drug or drugs" ( Family Ct. Act § 1012[f][i][B] ). Additionally, pursuant to Family Court Act § 1046(a)(iii), "proof that a person repeatedly misuses a drug...
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