In re Adonis H.

• Decision Date: 14 October 2021
• Docket Number: 2020-04827,2021-05627
• Court: New York Supreme Court
• Parties: In the Matter of Adonis H. and Another, Children Under 18 Years of Age etc., Enerfry H., Respondent-Appellant, Administration for Children's Services for the City of New York, Petitioner-Respondent. Docket Nos. NN-15928/18, NN-15929/18 Appeal No. 14352-14352A

In the Matter of Adonis H. and Another, Children Under 18 Years of Age etc., Enerfry H., Respondent-Appellant, Administration for Children's Services for the City of New York, Petitioner-Respondent. Docket Nos. NN-15928/18, NN-15929/18 Appeal No. 14352-14352A

No. 2021-05627

No. 2020-04827

Supreme Court of New York, First Department

October 14, 2021

Steven P. Forbes, Huntington, for appellant.

Georgia M. Pestana, Corporation Counsel, New York (Jessica Miller of counsel), for respondent.

Carol L. Kahn, New York, attorney for the children.

Before: Gische, J.P., Moulton, González, Kennedy, Scarpulla, JJ.

Order of disposition, Family Court, Bronx County (Fiordaliza A. Rodriguez, J.), entered on or about November 16, 2020, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about September 22, 2020, which found that respondent father neglected the subject children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The findings of neglect are supported by a preponderance of the evidence (see Family Court Act §§ 1012[f][i][B]; 1046[b][i]). Petitioner, Administration for Children Services (ACS), established its prima facie case of neglect pursuant to Family Court Act § 1046(a)(iii) through the investigative progress notes that were prepared by an ACS caseworker, which reported that the father admitted to being addicted to Percocet, was taking the drug in excess of what was prescribed, and was purchasing Percocet illegally after his doctor became suspicious and stopped prescribing it. This evidence established a prima facie case for neglect, and therefore, ACS did not have to establish either actual impairment of the children's physical, mental, or emotional condition, or specific risk of impairment (see Matter of Darrell W. [Tenika C.], 110 A.D.3d 1088, 1089 [2d Dept 2013], lv denied 23 N.Y.3d 904 [2014]). Respondent failed to rebut ACS's prima facie case by showing that he was regularly participating in treatment (Family Court Act § 1046[a][iii]; Matter of Dior S. [Latisha H.], 160 A.D.3d 495, 496 [1st Dept 2018]).

The court properly drew a negative inference from the fact that respondent, while present at the hearing, did not testify (see Matter of Chad Nasir S. [Charity Simone S.], 157 A.D.3d 425, 426 [1st Dept 2018]), and properly inferred that he implicitly admitted that...