Matter of Malachi H. (Dequisa H.)

125 A.D.3d 478, 2 N.Y.S.3d 482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2015
• Docket: 14204 14203
• Status: Published

Opinion

Order of disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about February 20, 2014, to the extent it brings up for review a fact-finding order (same court and Judge), entered on or about December 5, 2013, which, after a hearing, determined that respondent neglected the subject child, unanimously affirmed, without costs. Appeal from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The finding of neglect is supported by a preponderance of the evidence, which demonstrates that respondent left her then two-year-old son alone in her apartment for an hour and that he was discovered in the hallway outside the apartment while she was out (see Family Ct Act § 1046 [b] [i]). Respondent’s conduct placed her son in imminent danger of physical or emotional harm, and constitutes neglect, notwithstanding that the child was unharmed (see Family Ct Act § 1012 [f| [i] [B]; Matter of Rosemary V. [Jorge V.], 103 AD3d 484 [1st Dept 2013]).

Since respondent made no application for dismissal pursuant to Family Court Act § 1051 (c), her contention that the court should have dismissed the petition because the aid of the court was no longer required is unpreserved, and we decline to consider it (see Matter of Cherish C. [Shanikwa C.], 102 AD3d 597 [1st Dept 2013]). Were we to consider it, we would reject it.

Concur — Sweeny, J.R, Renwick, Moskowitz, Feinman and Kapnick, JJ.