Matter of Julio O. (Moises O.--Latishya H.)

Appellate Division of the Supreme Court of New York

Matter of Julio O. (Moises O.--Latishya H.)

137 A.D.3d 454, 25 N.Y.S.3d 877

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

DecidedMarch 3, 2016

Docket395

StatusPublished

This text of 137 A.D.3d 454 (Matter of Julio O. (Moises O.--Latishya H.)) 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

Matter of Julio O. (Moises O.--Latishya H.), 137 A.D.3d 454, 25 N.Y.S.3d 877 (N.Y. Ct. App. 2016).

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Opinion

*455 Order, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about December 1, 2014, which, to the extent appealed from, after a fact-finding hearing, determined that respondent mother had neglected the subject child Roberto O., and had derivatively neglected the other subject children, unanimously affirmed, without costs.

A preponderance of the evidence shows that the mother neglected Roberto by failing to address his numerous longstanding special needs and by failing to comply with the dispositional order in an earlier neglect proceeding against her (see Matter of Kiera R. [Kinyetta R.], 99 AD3d 565, 565 [1st Dept 2012]). Family Court properly drew a negative inference from the mother’s failure to testify (see Matter of Jazmyn R. [Luceita F.], 67 AD3d 495, 495 [1st Dept 2009]).

The derivative neglect finding as to the other children is also supported by a preponderance of the evidence (Family Ct Act § 1046 [a] [i]; [b] [i]). The mother’s failure to address Roberto’s problems demonstrated an impaired level of parental judgment that created a substantial risk of harm for all of the children in her care (Matter of Perry S., 22 AD3d 234, 235 [1st Dept 2005]). In addition, the evidence shows that two of the other subject children were having difficulty in school and had hygiene problems, and there was a prior derivative neglect finding with respect to three of the other subject children.

The mother never filed a notice of appeal with respect to the order of disposition entered on or about December 1, 2014, or with respect to the subsequent order extending placement, entered on or about February 23, 2015. Accordingly, we decline to reach the mother’s arguments regarding those orders (see Matter of M.-H. Children, 284 AD2d 188 [1st Dept 2001]). In any event, the mother’s arguments are unavailing.

Concur— Mazzarelli, J.P., Sweeny, Manzanet-Daniels and Gische, JJ.

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*455 Order, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about December 1, 2014, which, to the extent appealed from, after a fact-finding hearing, determined that respondent mother had neglected the subject child Roberto O., and had derivatively neglected the other subject children, unanimously affirmed, without costs.

A preponderance of the evidence shows that the mother neglected Roberto by failing to address his numerous longstanding special needs and by failing to comply with the dispositional order in an earlier neglect proceeding against her (see Matter of Kiera R. [Kinyetta R.], 99 AD3d 565, 565 [1st Dept 2012]). Family Court properly drew a negative inference from the mother’s failure to testify (see Matter of Jazmyn R. [Luceita F.], 67 AD3d 495, 495 [1st Dept 2009]).

The derivative neglect finding as to the other children is also supported by a preponderance of the evidence (Family Ct Act § 1046 [a] [i]; [b] [i]). The mother’s failure to address Roberto’s problems demonstrated an impaired level of parental judgment that created a substantial risk of harm for all of the children in her care (Matter of Perry S., 22 AD3d 234, 235 [1st Dept 2005]). In addition, the evidence shows that two of the other subject children were having difficulty in school and had hygiene problems, and there was a prior derivative neglect finding with respect to three of the other subject children.

The mother never filed a notice of appeal with respect to the order of disposition entered on or about December 1, 2014, or with respect to the subsequent order extending placement, entered on or about February 23, 2015. Accordingly, we decline to reach the mother’s arguments regarding those orders (see Matter of M.-H. Children, 284 AD2d 188 [1st Dept 2001]). In any event, the mother’s arguments are unavailing.

Concur— Mazzarelli, J.P., Sweeny, Manzanet-Daniels and Gische, JJ.

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Bluebook (online)

137 A.D.3d 454, 25 N.Y.S.3d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-julio-o-moises-o-latishya-h-nyappdiv-2016.

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