November 12, 2013
In re Arianna S., and Another, Dependent Children Under the Age of Eighteen Years, etc., and Virginia R., Respondent-Appellant, Commissioner for Social Services of the City of New York, Petitioner-Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Adira Hulkower of counsel), attorney for the children.
Andrias, J.P., Acosta, Saxe, Renwick, Manzanet-Daniels, JJ.
Order of fact-finding, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about July 26, 2012, which, after a hearing, found that respondent mother had neglected her children, unanimously reversed, on the law and the facts, without costs, and the petition dismissed. Appeal from order of disposition, same court and Judge, entered on or about September 21, 2012, unanimously dismissed, without costs, as abandoned.
Since the court concluded that it could not determine whether or not the mother had used excessive corporal punishment, petitioner failed to meet its burden by a preponderance of the evidence on the only allegation in the petition (Family Ct Act § 1046[b][i]). Although the issue is not preserved, we conclude the court improperly based its determination on claims of neglect not raised in the petition, without affording appellant a reasonable opportunity to prepare to answer this claim (see Family Ct Act § 1051 [b]; Matter of Vallery P. [Jondalla P.], 106 A.D.3d 575 [1st Dept 2013]). Moreover, the petitioner failed to demonstrate by a preponderance of the evidence that the children were impaired or at risk of impairment by the mother's admitted financial and emotional stressors (see Matter of Jeffrey M. [Noemi C.], 102 A.D.3d 608 [1st Dept 2013]).