In re North

• Citation: 2014 N.Y. Slip Op. 04012,987 N.Y.S.2d 406,118 A.D.3d 703
• Parties: In the Matter of WILLIAM N. (Anonymous), Jr. Commissioner of Administration for Children's Services of City of New York, appellant; Kimberly H. (Anonymous), respondent-respondent; William N. (Anonymous), Sr., respondent.
• Decision Date: 04 June 2014
• Court: New York Supreme Court Appellate Division

118 A.D.3d 703
987 N.Y.S.2d 406
2014 N.Y. Slip Op. 04012

In the Matter of WILLIAM N. (Anonymous), Jr.
Commissioner of Administration for Children's Services of City of New York, appellant;
Kimberly H. (Anonymous), respondent-respondent;
William N. (Anonymous), Sr., respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 4, 2014.

[987 N.Y.S.2d 407]

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Modecai Newman of counsel), for appellant.

[987 N.Y.S.2d 408]

Chas Budnick, Brooklyn, N.Y. (Ellen Tobin of counsel), for respondent-respondent.

Joel Kahn, Brooklyn, N.Y., for respondent.

Steven C. Bernstein, Brooklyn, N.Y., attorney for the child.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

In related child protective proceedings pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County (O'Shea, J.), dated June 5, 2013, as, upon a decision of the same court dated May 31, 2013, made after a fact-finding hearing, granted the mother's motion pursuant to CPLR 4401 for judgment as a matter of law and dismissed the petition insofar as asserted against the mother. The notice of appeal from the decision is deemed to be a notice of appeal from the order of fact-finding and disposition ( seeCPLR 5512[a] ).

ORDERED that the order of fact-finding and disposition is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the petition is reinstated insofar as asserted against the mother, it is found that the mother derivatively neglected the subject child, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and a new disposition thereafter on that branch of the petition which was asserted against the mother.

In December 2010, upon a petition alleging that the mother neglected her daughter, Akasha, by abusing marijuana, the mother consented to entry of a finding of neglect. An order of disposition was entered upon that finding, requiring, among other things, that the mother participate in anger management, parenting skills, and domestic violence programs. In March 2011, less than three months after the mother consented to entry of the finding of neglect with respect to Akasha, the mother gave birth to the subject child, William, Jr. The mother, but not William, Jr., tested positive for marijuana. Two days after William was born, the Commissioner of the Administration for Children's Services of the City of New York (hereinafter the petitioner) filed a petition in this proceeding alleging, among other things, that the mother derivatively neglected William, Jr. The petition cited the mother's positive test for marijuana, as well as the mother's alleged noncompliance with other provisions of the order of disposition in the child protective proceeding with respect to Akasha.

At the fact-finding hearing in the instant matter, the petitioner sought to introduce evidence of the neglect finding as to Akasha as proof that the mother in fact neglected Akasha, and in support of the petition in this proceeding alleging derivative neglect of William, Jr. The Family Court declined to admit the evidence. It held that a finding of neglect as to one child entered upon the party's consent is not admissible as “proof of the neglect” of that child in a subsequent neglect proceeding commenced in connection with another child (Family Ct. Act § 1046[a][i]; see Matter of William N. [Kimberly H.-William N.], 40 Misc.3d 602, 616, 968 N.Y.S.2d 357). Further, upon concluding that the petitioner submitted insufficient proof that the mother derivatively neglected William, Jr., the Family Court granted the mother's motion pursuant to CPLR 4401 for judgment as a matter of law, and dismissed the petition insofar as asserted against the mother. The petitioner appeals.

[987 N.Y.S.2d 409]

A petitioning agency has the burden of establishing child neglect under Family Court Act article 10 by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i]; Matter of Maithsa Edourd S., 27 A.D.3d 475, 476, 811 N.Y.S.2d 117). Proof of a respondent's neglect of one child is admissible in determining...