Matter of Darren Desmond W. (Nirandah W.)

Matter of Darren Desmond W. (Nirandah W.) 2014 NY Slip Op 07275 Decided on October 23, 2014 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 23, 2014
Friedman, J.P., Sweeny, Acosta, Saxe, Manzanet-Daniels, JJ.
13279

[*1] In re Darren Desmond W., A Child Under the Age of Eighteen Years, etc.

and

Nirandah W., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

George E. Reed, Jr., White Plains, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Adira Hulkower of counsel), attorney for the child.

Appeal from order of fact-finding and disposition, Family Court, New York County (Susan K. Knipps, J.), entered on or about August 6, 2013, which, upon inquest after respondent's default at the fact-finding hearing, determined that respondent had neglected the subject child, transferred custody of the child to the Commissioner of Social Services until the next permanency hearing, and approved the agency's permanency plan for adoption, unanimously dismissed, without costs.

The order was entered upon respondent's default and is therefore not appealable (see CPLR 5511; Matter of Julien Javier F. [Christina F.], 110 AD3d 562 [1st Dept 2013]).

In any event, the finding of derivative neglect is supported by a preponderance of the evidence (Family Court Act §§ 1012[f][i][B]; 1046[a][i], [b][i]). A one-year suspended judgment terminating respondent's rights to two of her other children was entered less than a year and a half before the filing of the instant petition. The underlying conditions that went unfulfilled, resulting in the prior neglect findings - that respondent obtain a source of income, provide adequate housing and medical care for the children, and comply with her service plan - remained unfulfilled (see Matter of Niya Kaylee S. [Yolanda R.], 110 AD3d 460 [1st Dept 2013]). Family Court properly conformed the petition to the proof (Family Court Act § 1051[b]), which supported a finding of direct neglect of the subject child by abandonment. The court did not err in drawing a negative inference against respondent for her failure to appear at the hearing (see Matter of Commissioner of Social Servs. v Phillip De G., 59 NY2d 137, 141 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2014

CLERK