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In re Jaylynn R. (Anonymous)

Supreme Court of New York, Second Department

June 12, 2013

In the Matter of Jaylynn R. (Anonymous). Administration for Children's Services, petitioner- respondent; and Monica D. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Janaya D. (Anonymous). Administration for Children's Services, petitioner- respondent; and Monica D. (Anonymous), appellant, et al., respondent. (Proceeding No. 2) Docket Nos. N-3364/10, N-4974/11

Richard L. Herzfeld, New York, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Kathy H. Chang of counsel), for petitioner- respondent.

Serena Rosario, Brooklyn, N.Y., attorney for the children.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

In related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Kings County (Danoff, J.), dated May 29, 2012, which, after fact-finding and dispositional hearings, inter alia, found that she neglected the child Jaylynn R. and derivatively neglected the child Janaya D.

ORDERED that the order of fact-finding and disposition is reversed, on the facts, without costs or disbursements, and the petitions are dismissed.

To establish neglect, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship (see Nicholson v Scoppetta, 3 N.Y.3d 357, 368; see also Family Ct Act § 1046[b][i]). In determining the minimum degree of care, "[c]ourts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing" (Nicholson v Scoppetta, 3 N.Y.3d at 370).

As the mother correctly contends, the Family Court's finding of neglect against her was not supported by a preponderance of the evidence. The evidence presented by the petitioner at the fact-finding hearing did not establish that the failure of the baby Jaylynn R. to thrive and adequately gain weight was a consequence of the mother's failure to properly feed her (cf. Matter of Kayla C., 19 A.D.3d 692; Matter of Camara R., 263 A.D.2d 710).

Since the finding of derivative neglect regarding Janaya D. was based on the neglect determination with respect to Jaylynn R., that finding, too, is unsupported by the evidence (see Matter of Amoreih S. [ Nicole S. ], 84 A.D.3d 1246, 1247; Matter of Iyanah D., 65 A.D.3d 927, 928).

Accordingly, the order of fact-finding and disposition must be reversed and the petitions dismissed.

We note that the Family Court violated the mother's due process rights when it instructed her not to consult with her attorney during a two-month adjournment of the fact-finding hearing (cf. People v Joseph, 84 N.Y.2d 995; People v Blount, 77 N.Y.2d 888; People v Samuels, 22 A.D.3d 507; People v Lowery, 253 A.D.2d 893, 894; see generally Matter of Ella B., 30 N.Y.2d 352, 356-357).

SKELOS, J.P., ANGIOLILLO, LEVENTHAL and CHAMBERS, JJ., concur.


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