Cornelius G. v. Admin. for Children's Servs. (In re M.G.)

212 A.D.3d 437

179 N.Y.S.3d 576 (Mem)

In the MATTER OF M.G., and Others., Children Under Eighteen Years of Age, etc.,

Cornelius G., Respondent-Appellant,

v.Administration for Children's Services, Petitioner-Respondent.

17040

Dkt. Nos. NN-01825-21, NN-01826-21, NN-01827-21, NN-01828-21

Case No. 2022-01644

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

Entered January 10, 2023

Bruce A. Young, Brooklyn, for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jamison Davies of counsel), for respondent.

Leslie S. Lowenstein, Woodmere, attorney for the children.

Acosta, P.J., Webber, Moulton, Shulman, Higgitt, JJ.

Order of fact-finding and disposition (one paper), Family Court, Bronx County ( David J. Kaplan, J.), entered on or about March 24, 2022, which, to the extent appealed from as limited by the briefs, determined, after a fact-finding hearing, that respondent father neglected the subject child Z.G. and derivatively neglected his other three children, unanimously affirmed, without costs.

Family Court's finding of neglect was supported by a preponderance of the evidence. It is undisputed that the father left one-year-old Z.G. unattended in the bathtub for about two minutes, with the water running, while he went to clean up the kitchen, resulting in the child nearly drowning and going into cardiac arrest (see Matter of Dream F. [Phillystina R.] , 187 A.D.3d 555, 556, 130 N.Y.S.3d 667 [1st Dept. 2020], lv dismissed 36 N.Y.3d 962, 137 N.Y.S.3d 293, 161 N.E.3d 481 [2021] ; see also Matter of Leah VV. [Theresa WW.] , 157 A.D.3d 1066, 1067, 66 N.Y.S.3d 582 [3d Dept. 2018], lv dismissed 31 N.Y.3d 1037, 76 N.Y.S.3d 499, 100 N.E.3d 838 [2018] ).

In view of the foregoing, the court also correctly found that the father derivatively neglected his three other children (see Matter of Iris G. [Angel G.] , 144 A.D.3d 908, 908, 41 N.Y.S.3d 538 [2d Dept. 2016] ). The father's contention that he had no notice or opportunity to defend against these charges because they were not alleged in the petition is unpreserved, as he did not object or respond when petitioner requested the derivative neglect findings (see Matter of Michelle S. , 195 A.D.2d 721, 722, 600 N.Y.S.2d 303 [3d Dept. 1993] ). Further, the court properly sua sponte conformed the petition to the proof adduced at the hearing, as no surprise or prejudice could result, given the father's admissions (see Family Court Act § 1051[b] ; Matter of Jose M.R. v. Arian S. , 209 A.D.3d 549, 176 N.Y.S.3d...