Matter of Ne-Ashia R. (Na-Ashia R.)

Matter of Matter of Ne-Ashia R. (Na-Ashia R.) 2012 NY Slip Op 07192 Decided on October 25, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2012
Gonzalez, P.J., Moskowitz, Acosta, Freedman, Abdus-Salaam, JJ.
8372

[*1]In re Ne-Ashia R., A Dependent Child Under the Age of Eighteen Years, etc.,

and

Na-Ashia R., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.




Steven N. Feinman, White Plains, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for respondent.
Elisa Barnes, New York, attorney for the child.

Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about February 16, 2012, which, following a fact-finding hearing, inter alia, determined that respondent mother had severely abused her son and derivatively severely abused her daughter, unanimously affirmed, without costs.

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 [*2]statute" (see Social Services Law § 384-b[8]). Further, the 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]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2012

CLERK