Commissioner of Social Services v. Margaret D.

Appellate Division of the Supreme Court of New York

Commissioner of Social Services v. Margaret D.

221 A.D.2d 439, 633 N.Y.S.2d 566, 1995 N.Y. App. Div. LEXIS 11861

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1995

StatusPublished

Cited by9 cases

This text of 221 A.D.2d 439 (Commissioner of Social Services v. Margaret D.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commissioner of Social Services v. Margaret D., 221 A.D.2d 439, 633 N.Y.S.2d 566, 1995 N.Y. App. Div. LEXIS 11861 (N.Y. Ct. App. 1995).

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Opinion

—In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from so much of an order of disposition of the Family Court, Queens County (Fitzmaurice, J.), dated September 13, 1993, as, upon a fact-finding order of the same court dated April 12, 1993, finding Corrine B. to be a neglected child, and upon the denial of her motion to vacate the fact-finding order and reopen the fact-finding hearing, released the child to the custody of her father. The appeal from the order of disposition brings up for review the fact-finding order dated April 12, 1993.

Ordered that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant’s contention, the testimony adduced at the hearing was sufficient to establish by a preponderance of the evidence that Corrine B. was neglected by the appellant, by virtue of the appellant’s abuse of alcohol, which placed the physical, mental, and emotional condition of her child in imminent danger of becoming impaired (see, Family Ct Act § 1012 [f] [i] [B]; § 1046 [a] [iii]; Matter of William T., 185 AD2d 413; Matter of George C., 122 AD2d 943; Matter of Toni WW., 52 AD2d 108).

In addition, we discern no error in the court’s denial of the appellant’s motion to vacate the fact-finding order and re-open the fact-finding hearing, premised on the ground that she was absent from the last day of the hearing. In light of the appellant’s history of prior absences, her failure to raise this issue for more than three months, and her unsubstantiated claim that the date slip she received misstated the adjourned hearing date, the court correctly concluded that the appellant "willfully refused to appear at the hearing” (Family Ct Act § 1042; Matter of Male J., 214 AD2d 417; Matter of Jamel H., 187 AD2d 513).

The appellant’s remaining contention is unpreserved for appellate review, and, in any event, without merit. Joy, J. P., Hart, Goldstein and Florio, JJ.

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—In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from so much of an order of disposition of the Family Court, Queens County (Fitzmaurice, J.), dated September 13, 1993, as, upon a fact-finding order of the same court dated April 12, 1993, finding Corrine B. to be a neglected child, and upon the denial of her motion to vacate the fact-finding order and reopen the fact-finding hearing, released the child to the custody of her father. The appeal from the order of disposition brings up for review the fact-finding order dated April 12, 1993.

Ordered that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant’s contention, the testimony adduced at the hearing was sufficient to establish by a preponderance of the evidence that Corrine B. was neglected by the appellant, by virtue of the appellant’s abuse of alcohol, which placed the physical, mental, and emotional condition of her child in imminent danger of becoming impaired (see, Family Ct Act § 1012 [f] [i] [B]; § 1046 [a] [iii]; Matter of William T., 185 AD2d 413; Matter of George C., 122 AD2d 943; Matter of Toni WW., 52 AD2d 108).

In addition, we discern no error in the court’s denial of the appellant’s motion to vacate the fact-finding order and re-open the fact-finding hearing, premised on the ground that she was absent from the last day of the hearing. In light of the appellant’s history of prior absences, her failure to raise this issue for more than three months, and her unsubstantiated claim that the date slip she received misstated the adjourned hearing date, the court correctly concluded that the appellant "willfully refused to appear at the hearing” (Family Ct Act § 1042; Matter of Male J., 214 AD2d 417; Matter of Jamel H., 187 AD2d 513).

The appellant’s remaining contention is unpreserved for appellate review, and, in any event, without merit. Joy, J. P., Hart, Goldstein and Florio, JJ.

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221 A.D.2d 439, 633 N.Y.S.2d 566, 1995 N.Y. App. Div. LEXIS 11861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-social-services-v-margaret-d-nyappdiv-1995.

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