Matter of Andre B. (Wilner G. B.)

Matter of Matter of Andre B. (Wilner G. B.) 2012 NY Slip Op 00002 Decided on January 3, 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 January 3, 2012
Gonzalez, P.J., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.
6441A -3631

[*1]6441-In re Andre B., and Another, Dependent Children Under the Age of Eighteen Years, etc.,

and

Wilner G. B., Respondent-Appellant, New York City Administration for Children's Services, Petitioner-Respondent.




Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel
of counsel), for appellant.
Steven N. Feinman, White Plains, attorney for the children.

Orders of disposition, Family Court, Bronx County (Ilana Gruebel, J.), entered on or about September 20, 2010, which, upon a fact-finding that respondent father neglected the child Giovanni D. and derivatively neglected the child Andre B., placed Giovanni in the custody and guardianship of the Commissioner of Social Services until the next scheduled permanency hearing and placed Andre in the custody of his mother, unanimously affirmed, without costs.

The findings of neglect and derivative neglect are supported by a preponderance of the evidence showing that respondent posed an imminent danger of harm to Giovanni (see Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; Matter of Joshua R., 47 AD3d 465 [2008], lv denied 11 NY3d 703 [2008]). A hospital clerk testified that she saw respondent forcefully shake the two-week-old Giovanni like a rag doll, that respondent told her he had been feeding the infant bananas, and that respondent called the baby the devil. Giovanni's mother also testified that respondent fed the infant bananas and referred to him as a "devil child." Petitioner was not required to demonstrate actual harm to the infant (see Matter of Pedro C. [Josephine B.], 1 AD3d 267 [2003]). Respondent's conduct reflects so flawed an understanding of the duty to [*2]protect one's children from harm as to present a substantial risk of harm for any child in his care (see Joshua R., 47 AD3d at 466).

M-3631 - In re Andre B. and Another

Motion to be relieved as counsel denied.

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

ENTERED: JANUARY 3, 2012

CLERK