In the Matter of Kianna M., a Child Alleged to be Neglected. Roosevelt M. et al., Respondents.
Robert J. Cimino, County Attorney of Suffolk County, Central Islip (Jeffrey A. Adolph of counsel), for plaintiff.
Joseph Mirabella, Mastic, for Roosevelt M., respondent.
Stephen R. Hellman, Sayville, for Loretta B., respondent.
Robert T. Gallo, Ronkonkoma, for Rachel S., respondent.
Richard Gold, Bohemia, Law Guardian.
Dudley L. Lehman, J.
After commencement of the fact-finding hearing and during presentation of the matter in chief, petitioner, by oral motion, sought to amend the neglect petitions in the instant case to
include allegations of abuse. Petitioner argues that Family Court Act § 1051 (b) and the related case law allows for alterations to article 10 petitions, " so long as any changes made have conformed to the evidence given by the petitioner" and provided that " respondent is given an opportunity to prepare and respond to the altered claims."
Respondent contends that the Family Court Act does not authorize this court to add " additional charges" to an article 10 petition, and purports that the intent of the statute was to permit the amendment of the petition to cure minor defects such as dates, times, locations and names.
Family Court Act § 1051 (b) allows for the court to permit the amendment of article 10 petitions under certain circumstances and states:
" If the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations."
While both petitioner and respondent have cited various cases to support their respective contentions as to whether, under Family Court Act § 1051 (b), a neglect petition may be amended to include the allegation of abuse, the particular factual scenario before this court has not been addressed in the case law. A review thereof does indicate that the power of the courts to ...