Andrewv.Gregory

Appellate Division of the Supreme Court of New York, Second DepartmentMar 11, 2008
49 A.D.3d 638 (N.Y. App. Div. 2008)
49 A.D.3d 638854 N.Y.S.2d 1572008 N.Y. Slip Op. 2144

No. 2007-05572.

March 11, 2008.

In two related child neglect and abuse proceedings pursuant to Family Court Act article 10, the father, Gregory B., appeals, as limited by his brief, from so much of a fact-finding order of the Family Court, Suffolk County (Freundlich, J.), dated September 27, 2006, as, after a hearing, found that he neglected Andrew B. and derivatively neglected Lauren B., and the mother, Cynthia B., separately appeals (a), as limited by her brief, from so much of the same fact-finding order as, after a hearing, found that she abused Andrew B. and derivatively neglected Lauren B., (b) from an order of disposition of the same court (Hoffman, J.), dated May 17, 2007, (c) from an order of protection of the same court dated May 18, 2007, which prohibited all unsupervised contact between her and Andrew B. up to and including May 17, 2008, (d) from an order of protection of the same court, also dated May 18, 2007, which prohibited all unsupervised contact between her and Lauren B. up to and including May 17, 2008, and (e) from a resettled order of disposition of the same court dated May 30, 2007, which, after a hearing, inter alia, released the children to the custody of the father, limited the mother's contact with the children to supervised visitation, and prohibited her from any involvement in any decision regarding the children's medical needs.

Salvatore C. Adamo, New York, N.Y., for appellant Gregory B. Lansner Kubitschek, New York, N.Y. (Carolyn A. Kubitschek of counsel), for appellant.

Cynthia B. Christine Malafi, County Attorney, Central Islip, N.Y. (Gary Rosenthal of counsel), for respondent.

Robert C. Mitchell, Central Islip, N.Y. (Diane B. Groom of counsel), Law Guardian for the children

Before: Spolzino, J.P., Angiolillo, Balkin and Leventhal, JJ.


Ordered that the mother's appeal from the fact-finding order dated September 27, 2006 and the order of disposition dated May 17, 2007 are dismissed, without costs or disbursements, as so much of the order dated September 27, 2006, as, after a hearing, found that she abused Andrew B. and derivatively neglected Lauren B., and the order of disposition dated May 17, 2007 were superseded by the resettled order of disposition dated May 30, 2007; and it is further,

Ordered that the fact-finding order dated September 27, 2006 is affirmed insofar as reviewed, without costs or disbursements; and it is further,

Ordered that the orders of protection dated May 18, 2007, and the resettled order of disposition dated May 30, 2007, are affirmed, without costs or disbursements.

The Family Court's determination that the mother abused Andrew B. by repeatedly subjecting him to unnecessary medical treatment, either as a result of Munchausen Syndrome by Proxy or otherwise, and derivatively neglected his sibling Lauren B., is supported by legally sufficient evidence and the preponderance of the credible evidence ( see Matter of Patrick GG, 286 AD2d 540; Matter of Suffolk County Dept. of Social Servs. [Ellen S], 215 AD2d 395, 396). The evidence established a history of repeated fabrication as to Andrew's medical conditions, including her assertions for approximately one year that Andrew B. suffered from recurring fevers, which required his withdrawal from school for the 2005-2006 academic year. Her conduct demonstrated fundamental flaws in her understanding of the duties of parenthood, warranting a finding of derivative neglect with respect to Lauren B. ( see Matter of Amber C, 38 AD3d 538).

Further, the father's failure to question his wife's judgment, although he was present in the household and accompanied the mother and Andrew B. on some visits to medical professionals, justified a finding of neglect with respect to him.

The parents' remaining contentions are without merit.