Bibi H. v. Admin. for Children's Servs.-Queens

210 A.D.3d 771

178 N.Y.S.3d 148

In the Matter of BIBI H. (Anonymous), petitioner-respondent,

v.ADMIN. FOR CHILDREN'S SERVICES–QUEENS, respondent-respondent,Priya S. (Anonymous), appellant.

(Proceeding No. 1)

In the Matter of Ashton J. (Anonymous).

Administration for Children's Services, petitioner-respondent;

v.Priya S. (Anonymous), appellant.

(Proceeding No. 2)

2022-00020, 2022-00022

Docket Nos. N-25143-18, V-13511-19

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

Submitted—October 18, 2022

November 9, 2022

Hector L. Santiago, Kew Gardens, NY, for appellant.

Janis A. Parazzelli, Floral Park, NY, for petitioner-respondent in Proceeding No. 1.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Devin Slack and Kate Fletcher of counsel), for respondent-respondent in Proceeding No. 1 and petitioner-respondent in Proceeding No. 2.

Ronna L. DeLoe, Larchmont, NY, attorney for the child.

BETSY BARROS, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10 and a related proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of fact-finding and disposition of the Family Court, Queens County (Monica D. Shulman, J.), dated December 3, 2021, and (2) an order of the same court dated December 3, 2021. The order of fact-finding and disposition, insofar as appealed from, after a hearing, found that the mother neglected the subject child. The order, after a hearing and upon the mother's consent, granted the maternal grandmother's petition for custody of the subject child.

ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

The appeal from the order must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Kevon G. [Keith G.], 196 A.D.3d 572, 572–573, 151 N.Y.S.3d 154 ).

In December 2018, the Administration for Children's Services (hereinafter ACS) commenced a proceeding pursuant to Family Court Act article 10, alleging that the mother neglected the subject child as a result of her mental illness. After a hearing, the Family Court found that the mother neglected the child as a result of her ongoing mental illness and refusal to take medication, which rendered her unable to care for the child. The mother appeals.

The mother's contention that the Family Court was biased against her is unpreserved for appellate review. In any event, when a claim of bias is raised, "[t]he inquiry on appeal is limited to whether the judge's bias, if any, unjustly affected the result to the detriment of the complaining party" ( Matter of Davis v. Pignataro, 97 A.D.3d 677, 678, 948 N.Y.S.2d 378 [internal quotation marks omitted]). Here, the record reflects that the court treated the parties fairly and did not have a predetermined outcome of the case in mind during the hearing (see Matter of Bowe v. Bowe, 124 A.D.3d 645, 646, 1 N.Y.S.3d 301 ; Matter of Davis v. Pignataro, 97 A.D.3d at 678, 948 N.Y.S.2d 378 ). The mother's contention that she was deprived of a fair hearing by certain of the court's evidentiary rulings is unpreserved for appellate review and, in any event, without merit.

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing that the subject child has been abused or neglected by "a preponderance of evidence" ( Family Ct Act § 1046[b][i] ; see id. § 1012[f][i]). "Even though evidence of a parent's mental illness, alone, is insufficient to support a finding of neglect of a child, such evidence may be part of a neglect determination when the proof further demonstrates that the parent's condition creates an imminent risk of physical, mental, or emotional harm to the child" ( Matter of Maurice M. [Suzanne H.], 158 A.D.3d 689, 690–691, 68 N.Y.S.3d 740 ; see Matter of Joseph L. [Cyanne W.], 168 A.D.3d 1055, 1056, 93 N.Y.S.3d 113 ). Proof of a parent's "ongoing mental illness and the...