In re Ne-Ashia R.

Appellate Division of the Supreme Court of New York

In re Ne-Ashia R.

99 A.D.3d 616, 952 N.Y.2d 874

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

DecidedOctober 25, 2012

StatusPublished

This text of 99 A.D.3d 616 (In re Ne-Ashia R.) 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

In re Ne-Ashia R., 99 A.D.3d 616, 952 N.Y.2d 874 (N.Y. Ct. App. 2012).

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Opinion

The court had the authority under section 1051 (b) of the Family Court Act to sua sponte amend the allegations of the petition to conform to the proof presented at the fact-finding hearing (see Matter of T.D. Children, 161 AD2d 464, 465 [1st Dept 1990]). The mother’s contention that the court violated section 1051 (b) by not notifying her that it was amending the petition until the order under review was issued, thereby depriving her of the opportunity to answer the amended allegations, is refuted by the record. Indeed, approximately two months before the mother commenced her case, the court advised the parties that it was considering the petition “under a clear and convincing standard . . . and therefore, under the severe and repeated abuse statute” (see Social Services Law § 384-b [8]). Further, [617]*617the mother never requested an adjournment to better prepare her defense or moved to dismiss the petition (see Matter of Kila DD., 28 AD3d 805, 806 [3d Dept 2006]). Concur — Gonzalez, EJ., Moskowitz, Acosta, Freedman and Abdus-Salaam, JJ.

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The court had the authority under section 1051 (b) of the Family Court Act to sua sponte amend the allegations of the petition to conform to the proof presented at the fact-finding hearing (see Matter of T.D. Children, 161 AD2d 464, 465 [1st Dept 1990]). The mother’s contention that the court violated section 1051 (b) by not notifying her that it was amending the petition until the order under review was issued, thereby depriving her of the opportunity to answer the amended allegations, is refuted by the record. Indeed, approximately two months before the mother commenced her case, the court advised the parties that it was considering the petition “under a clear and convincing standard . . . and therefore, under the severe and repeated abuse statute” (see Social Services Law § 384-b [8]). Further, [617]*617the mother never requested an adjournment to better prepare her defense or moved to dismiss the petition (see Matter of Kila DD., 28 AD3d 805, 806 [3d Dept 2006]). Concur — Gonzalez, EJ., Moskowitz, Acosta, Freedman and Abdus-Salaam, JJ.

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Bluebook (online)

99 A.D.3d 616, 952 N.Y.2d 874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ne-ashia-r-nyappdiv-2012.

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