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In re Cevon W.

Supreme Court of New York, First Department

October 22, 2013

In re Cevon W., and Another, Dependent Children Under Eighteen Years of Age, etc., and Talisha W., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.

Andrew J. Baer, New York, attorney for the child Cevon W. Karen Freedman, Lawyers For Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child Anthony J.

Gonzalez, P.J., Tom, Saxe, Manzanet-Daniels, Gische, JJ.

Order of disposition, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about July 18, 2012, which, to the extent appealed from as limited by the briefs, brings up for review a fact-finding determination that appellant mother neglected her son and derivatively neglected her daughter, unanimously affirmed, without costs.

The Family Court's neglect finding as to appellant's son, a child with special needs, was supported by a preponderance of the evidence (see Matter of Ameena C. [Wykisha C.], 83 A.D.3d 606 [1st Dept 2011]; Matter of J. Children, 216 A.D.2d 159 [1st Dept 1995]). The court's neglect finding was also procedurally proper, as there was no need to conform the petition to the evidence, since the petition alleged that the mother failed to exercise a minimum degree of care toward her son, including excessive corporal punishment (see Family Court Act § 1012(f); Matter of Shawn BB, 239 A.D.2d 678, 680 [3rd Dept 1997]).

The mother's argument that, since her inappropriate actions at a parent-teacher conference were a one-time incident, the Family Court's finding of neglect was not based on legally sufficient evidence is unavailing, inasmuch as "[a] single incident where the parent's judgment was strongly impaired and the child exposed to a risk of substantial harm' can sustain a finding of neglect" (Matter of Kayla W., 47 A.D.3d 571, 572 [1st Dept 2008]).

The record also supports a finding of derivative neglect with respect to the daughter, since the mother's behavior towards her son demonstrates a sufficiently faulty understanding of her parental duties to warrant an inference of an ongoing danger to her daughter as well (see Ameena C., 83 A.D.3d at 607).


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