In the Matter of Delilah D. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Richard D. (Anonymous), respondent-appellant, et al., respondent. Docket No. N-1641-16
Argued
- October 13, 2017
D53789
O/htr
John
R. Lewis, Sleepy Hollow, NY, for respondent-appellant.
Langon
S. Chapman, County Attorney, Goshen, NY (Christine Foy-Stage
of counsel), for petitioner-respondent.
Theoni
Stamos-Salotto, Hopewell Junction, NY, attorney for the
child.
WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal
by the father from an order of fact-finding of the Family
Court, Orange County (Lori Currier Woods, J.), dated July 29,
2016. The order, insofar as appealed from, after a
fact-finding hearing, found that the father derivatively
neglected the subject child.
ORDERED
that the order of fact-finding is reversed insofar as
appealed from, on the law, without costs or disbursements,
the petition is denied insofar as asserted against the
father, and the proceeding is dismissed insofar as asserted
against him.
In July
2015, the Orange County Department of Social Services
(hereinafter DSS) filed a neglect petition against the mother
and father concerning the mother's child, who resided
with the mother and father but was not his biological child.
In September 2015, the Family Court made a finding of neglect
against the mother, and granted an adjournment in
contemplation of dismissal (hereinafter ACD) against the
father based on his admission that he failed to provide a
stable home forthe child. The court also required the father
to attend court-mandated substance abuse and mental health
treatment.
On
April 15, 2016, the Family Court granted a pre-petition
temporary removal of the mother and father's biological
child, Delilah, who was born in April 2016. The DSS then
filed a petition alleging derivative neglect against the
parents, based upon the court's prior finding of neglect
against the mother and the ACD against the father, and upon
both parents' noncompliance with conditions set forth by
the court in September 2015. In the order appealed from,
dated July 29, 2016, after a fact-finding hearing, the court
made a finding of derivative neglect against both parents.
Its finding against the father was based upon the ACD and his
noncompliance with the conditions set forth by the court in
September 2015. The father appeals from so much of the order
dated July 29, 2016, as entered a finding of derivative
neglect against him.
"Where
a person's conduct toward one child demonstrates a
fundamental defect in the parent's understanding of the
duties of parenthood, or demonstrates such an impaired level
of parental judgment as to create a substantial risk of harm
for any child in his or her care, an adjudication of
derivative neglect with respect to the other children is
warranted" (Matter of Iris G. [Angel G.], 144
A.D.3d 908, 908 [citations omitted]). "'In
determining whether a child born after the underlying acts of
neglect should be adjudicated as a child who was derivatively
neglected, the determinative factor is whether, taking into
account the nature of the conduct and any other pertinent
considerations, the conduct that formed the basis for a
finding of neglect as to one child is so proximate in time to
the derivative proceeding that it can reasonably be concluded
that the condition still exists'" (Matter of
Hope P. [Stephanie B.], 149 A.D.3d 947, 948, quoting
Matter of Alicia P. [Gregory P.], 123 A.D.3d 1135,
1135). However, "[a]n ACD is emphatically not a
determination on the merits. It is not akin to a finding of
parental neglect, but, rather, it leaves the question
unanswered" (Matter of Marie B., 62 N.Y.2d 352,
359; see Matter of Selliah v Penamente, 107 A.D.3d
1004, 1005; see also Matter of Casey N, 44 A.D.3d
861, 862).
Here,
the Family Court did not enter a finding of neglect against
the father in 2015. Instead, it entered an ACD against him
based on his admission that he failed to provide a stable
home for the child. Moreover, the DSS did not seek to reopen
the earlier proceeding to establish the father's neglect
based on his failure to comply with the conditions set forth
by the court. Under these circumstances, the court erred in
entering a finding of derivative neglect against the father
(see Matter of Marie B, 62 N.Y.2d at 359; Matter
of Selliah v Penamente, 107 A.D.3d at 1005; see also
Matter of Casey N., 44 A.D.3d at 862).
Accordingly,
the Family Court should have denied the petition and
dismissed the proceeding insofar ...