Matter of Arianna S. (Virginia R.)

Matter of Arianna S. (Virginia R.) 2013 NY Slip Op 07435 Decided on November 12, 2013 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 November 12, 2013
Andrias, J.P., Acosta, Saxe, Renwick, Manzanet-Daniels, JJ. 11034-
11034A

[*1]In re Arianna S., and Another, Dependent Children Under the Age of Eighteen Years, etc.,

and

Virginia R., Respondent-Appellant, Commissioner for Social Services of the City of New York, Petitioner-Respondent.




Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York
(Elizabeth S. Natrella of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Adira
Hulkower of counsel), attorney for the children.

Order of fact-finding, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about July 26, 2012, which, after a hearing, found that respondent mother had neglected her children, unanimously reversed, on the law and the facts, without costs, and the petition dismissed. Appeal from order of disposition, same court and Judge, entered on or about September 21, 2012, unanimously dismissed, without costs, as abandoned.

Since the court concluded that it could not determine whether or not the mother had used excessive corporal punishment, petitioner failed to meet its burden by a preponderance of the evidence on the only allegation in the petition (Family Ct Act § 1046[b][i]). Although the issue is not preserved, we conclude the court improperly based its determination on claims of neglect not raised in the petition, without affording appellant a reasonable opportunity to prepare to answer this claim (see Family Ct Act § 1051 [b]; Matter of Vallery P. [Jondalla P.], 106 AD3d 575 [1st Dept 2013]). Moreover, the petitioner failed to demonstrate by a preponderance of the [*2]evidence that the children were impaired or at risk of impairment by the mother's admitted financial and emotional stressors (see Matter of Jeffrey M. [Noemi C.], 102 AD3d 608 [1st Dept 2013]).

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

ENTERED: NOVEMBER 12, 2013

CLERK