Admin. for Children's Servs. v. Vanessa P. (In re Eternity S.)

183 A.D.3d 748

122 N.Y.S.3d 667

In the MATTER OF ETERNITY S. (Anonymous).

Administration for Children's Services, Respondent;

v. Vanessa P. (Anonymous), et al., Appellants. (Proceeding No. 1)

In the Matter of Omari S. (Anonymous).

Administration for Children's Services, Respondent;

v. Vanessa P. (Anonymous), et al., Appellants. (Proceeding No. 2)

In the Matter of Omere S. (Anonymous).

Administration for Children's Services, Respondent;

v. Vanessa P. (Anonymous), et al., Appellants. (Proceeding No. 3)

In the Matter of Lamonte S. (Anonymous), Jr.

Administration for Children's Services, Respondent;

v.Lamonte S. (Anonymous), appellant. (Proceeding No. 4)

2019-04800

2019-04801

2019-04802

2019-04803

2019-04804

Docket Nos. N-19470-16, N-19471-16, N-19472-16, N-19473-16

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 12, 2020

May 13, 2020

Carol Kahn, New York, NY, for appellant Vanessa D.P.S.S., named herein as Vanessa P.

Heath J. Goldstein, Jamaica, NY, for appellant Lamonte S.

James E. Johnson, Corporation Counsel, New York, N.Y. (Aaron M. Bloom and D. Alan Rosinus, Jr., of counsel), for respondent.

Joseph A. Fredericks, North Bellmore, NY, attorney for the children Eternity S., Omari S., and Omere S.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Marcia Eggert), attorney for the child Lamonte S., Jr.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from an amended order of fact-finding and disposition of the Family Court, Queens County (Connie Gonzalez, J.), dated April 1, 2019, and the mother separately appeals from (1) an order of fact-finding of the same court dated March 15, 2019, (2) an order of disposition of the same court also dated March 15, 2019, (3) an order of fact-finding and disposition of the same court dated March 27, 2019, (4) an order of fact-finding and disposition of the same court also dated March 27, 2019, and (5) the amended order of fact-finding and disposition dated April 1, 2019. The order of fact-finding, insofar as appealed from, after a fact-finding hearing, found that the mother neglected the children Eternity S., Omari S., and Omere S. The order of disposition, insofar as appealed from, upon the order of fact-finding and after a dispositional hearing, released the children Eternity S., Omari S., and Omere S. to the custody of the mother with supervision by the petitioner for a period of one year. The first order of fact-finding and disposition dated March 27, 2019, insofar as appealed from, after fact-finding and dispositional hearings, found that the mother neglected the children Eternity S., Omari S., and Omere S. and released those children to the custody of the mother with supervision by the petitioner for a period of one year. The second order of fact-finding and disposition dated March 27, 2019, insofar as appealed from, after fact-finding and dispositional hearings, found that the mother neglected the children Eternity S., Omari S., and Omere S. and released those children to the custody of the mother with supervision by the petitioner for a period of one year. The amended order of fact-finding and disposition, insofar as appealed from by the father, after fact-finding and dispositional hearings, found that the father neglected the four subject children and released the children Eternity S., Omari S., and Omere S. to the custody of the mother with supervision by the petitioner for a period of one year. The amended order of fact-finding and disposition, insofar as appealed from by the mother, after fact-finding and dispositional hearings, found that the mother neglected the children Eternity S., Omari S., and Omere S. and released those children to the custody of the mother with supervision by the petitioner for a period of one year.

ORDERED that the appeals from (1) the order of fact-finding, (2) the order of disposition, (3) the first order of fact-finding and disposition dated March 27, 2019, and (4) the second order of fact-finding and disposition dated March 27, 2019, are dismissed, without costs or disbursements, as those orders were superseded by the amended order of fact-finding and disposition, and are brought up for review on the appeals from the amended order of fact-finding and disposition; and it is further,

ORDERED that the appeals from so much of the amended order of fact-finding and disposition as released the children Eternity S., Omari S., and Omere S. to the custody of the mother with supervision by the petitioner for a period of one year are dismissed as academic, as that portion of the order expired by its own terms (see Matter of T.N. [Alec N.], 168 A.D.3d 743, 91 N.Y.S.3d 202 ); and it is further,

ORDERED that the amended order of fact-finding and disposition is modified, on the law and the facts, by deleting the provisions thereof finding that the mother neglected Eternity S., Omari S., and Omere S. and that the father neglected Lamonte S., Jr.; as so modified, the amended order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements, and the order of fact-finding, the order of disposition, and the orders of fact-finding and disposition are modified accordingly.

The father, Lamonte S., and the mother, Vanessa P. (hereinafter Vanessa), are the parents of the subject children Eternity S., Omari S., and Omere S. The father is also the parent of the subject child Lamonte S., Jr., who resides with his mother, Victoria L. (hereinafter Victoria). On October 3, 2016, the father and Vanessa were arrested for attacking Victoria outside their home while all four subject children were inside. At the time of the incident, Victoria had come to the home of the father and Vanessa to pick up Lamonte S., Jr., who had been visiting for the weekend. The next day, the Administration of Children's Services (hereinafter ACS) commenced these related proceedings pursuant to Family Court Act article 10, alleging that the father neglected the subject children by engaging in an act of domestic violence against Victoria and by perpetrating acts of domestic violence against Vanessa in the presence of the children. ACS further alleged that Vanessa neglected Eternity S., Omari S., and Omere S. by committing an act of domestic violence against Victoria in their presence.

At a fact-finding hearing, ACS presented evidence that on January 29, 2015, the father had pleaded guilty to harassment in the second degree arising out of an incident involving Vanessa, and that an order of protection had been issued against the father directing him to refrain from, among other things, assaulting and harassing Vanessa. ACS also presented evidence that on March 28, 2015, the father had punched Vanessa in the mouth with a closed fist and choked her while she was holding one of their children. After the fact-finding hearing and a dispositional hearing, the Family Court found that the father neglected all four subject children and that Vanessa neglected Eternity S., Omari S., and Omere S. The court released Eternity S., Omari S., and Omere S. to the custody of Vanessa with supervision by ACS for a period of one year. The father and Vanessa separately appeal.

"[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or [caregiver] to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( ...