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Keith H. v. Logann Marchele K.

Appellate Division of the Supreme Court of the State of New York
Jan 12, 2016
24 N.Y.S.3d 35 (N.Y. App. Div. 2016)

Opinion

16602

01-12-2016

In re KEITH H., III, A Dependent Child Under Eighteen Years of Age, etc., Logann Marchele K., etc., Respondent–Appellant, Administration for Children Services, Petitioner–Respondent.

  Steven N. Feinman, White Plains, for appellant. Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.


Steven N. Feinman, White Plains, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.

Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.

Opinion

Order of fact finding, Family Court, New York County (Jane Pearl, J.), entered on or about July 9, 2014, which, after a hearing, determined that respondent mother derivatively neglected the subject child, unanimously affirmed, without costs.

The record demonstrates by a preponderance of the evidence that the mother posed an imminent danger of harm to the subject child, even though he was not abused by her, because there are prior orders finding that she had neglected and derivatively neglected her other children by inflicting excessive corporal punishment upon two of the child's siblings (see Matter of Andre B. [Wilner G.B.], 91 A.D.3d 411, 412, 939 N.Y.S.2d 1 1st Dept.2012; Matter of Ameena C. [Wykisha C.], 83 A.D.3d 606, 607, 922 N.Y.S.2d 322 1st Dept.2011 ). “The prior orders finding neglect, rendered before the [subject] child was born, were affirmed on appeal [ ], and supported a finding of derivative neglect as to all other siblings [ ]” (Matter of Keith H. [Logann M.K.], 113 A.D.3d 555, 555, 980 N.Y.S.2d 14 1st Dept.2014; see Matter of Jeremy H. [Logann K.], 100 A.D.3d 518, 957 N.Y.S.2d 2 1st Dept.2012; Matter of Jacob H. [Logann K.], 94 A.D.3d 628, 942 N.Y.S.2d 353 1st Dept.2012, lv. dismissed 19 N.Y.3d 952, 950 N.Y.S.2d 98, 973 N.E.2d 196 2012 ).

Moreover, the instant petition was filed within four months after the Family Court's finding of neglect as to one of the subject child's older siblings, and the mother does not argue that the neglect finding was too remote in time to the instant proceeding to support a reasonable conclusion that the condition still exists (see Matter of Keith H., 113 A.D.3d at 555–556, 980 N.Y.S.2d 14; Matter of Camarrie B. [Maria R.], 107 A.D.3d 409, 966 N.Y.S.2d 415 1st Dept.2013 ).

Given that the mother has previously been found to have neglected her other children, the finding of derivative neglect as to the subject child was appropriate, since the mother's previous behavior “demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in [her] care” (Matter of Jasmine B., 66 A.D.3d 420, 420, 886 N.Y.S.2d 162 1st Dept.2009 ).

The fact that the mother had completed a court-ordered mental health evaluation, parenting skills and anger management programs, and participated in regular visitation with her other children before the instant proceeding on behalf of the subject child commenced does not preclude a finding of derivative neglect. The mother's failure to see a psychiatrist and take medication, which was recommended in her service plan, demonstrates that she failed to take appropriate measures to deal with her mental health issues, and her inability to acknowledge her previous behavior “supports the conclusion that she has a faulty understanding of the duties of parenthood sufficient to infer an ongoing danger to the subject child” (Matter of Keith H., 113 A.D.3d at 556, 980 N.Y.S.2d 14; see Matter of Jayden C. [Luisanny A.], 126 A.D.3d 433, 2 N.Y.S.3d 349 1st Dept.2015; Matter of T–Shauna K., 63 A.D.3d 420, 420, 879 N.Y.S.2d 462 1st Dept.2009 ).

The Family Court also properly discredited the testimony of the mother's therapist that the mother's mental health condition had improved significantly, the mother received all the services she needed, and the mother did not need medication. The therapist testified that she never reviewed the mother's mental health evaluation or the notes from her colleagues who also treated the mother, and that she did not have a full understanding of the mental health concerns ACS and other mental health providers had regarding the mother. There is no basis to disturb the Family Court's credibility determination (see Matter of Nasir J., 35 A.D.3d 299, 299, 827 N.Y.S.2d 41 1st Dept.2006 ).


Summaries of

Keith H. v. Logann Marchele K.

Appellate Division of the Supreme Court of the State of New York
Jan 12, 2016
24 N.Y.S.3d 35 (N.Y. App. Div. 2016)
Case details for

Keith H. v. Logann Marchele K.

Case Details

Full title:In re Keith H., III, A Dependent Child Under Eighteen Years of Age, etc.…

Court:Appellate Division of the Supreme Court of the State of New York

Date published: Jan 12, 2016

Citations

24 N.Y.S.3d 35 (N.Y. App. Div. 2016)
135 A.D.3d 483
2016 N.Y. Slip Op. 103

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