Matter of Frankie S. (Katiria Y.)

Matter of Frankie S. (Katiria Y.) 2017 NY Slip Op 08334 Decided on November 28, 2017 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 28, 2017
Tom, J.P., Friedman, Andrias, Gesmer, JJ.
5069

[*1]In re Frankie S., A Dependent Child Under the Age of Eighteen Years, etc., Katiria Y., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Steven N. Feinman, White Plains, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.

Andrew J. Baer, New York, attorney for the child.

Order, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about October 13, 2016, which denied respondent mother's motion to modify the order of disposition entered on or about July 30, 2015, unanimously affirmed, without costs.

Modification of the dispositional order and vacatur of the neglect finding is not authorized under Family Court Act § 1051(c), since that statute only permits dismissal at the fact-finding stage (see Matter of Leenasia C. [Lamarriea C.], 154 AD3d 1, 8 [1st Dept 2017]). Nor are modification and vacatur warranted under Family Court Act § 1061, as the mother failed to demonstrate good cause that the relief sought promoted the best interests of the child (see id. at 9). Notably, the mother neither sought a hearing at which she might testify, nor submitted an affidavit in support of her motion. She had a significant child protective history, including two neglect proceedings involving the child. The first proceeding, which alleged medical and educational neglect of the child, ended with an adjournment in contemplation of dismissal. After the mother completed the mandated services, a second proceeding was commenced against her with the some of the same allegations, and including an additional claim of excessive corporal punishment of an older child in the home, resulting in the neglect finding. The mother's offenses were serious because she failed to address the child's special needs on a consistent basis.

Moreover, the record does not reflect evidence of remorse, acknowledgment by the mother of her parental deficiencies in the past, or amenability to correction. As the court noted, it is not unreasonable to believe that its aid would be required in the future, given the mother's difficulties in the past coping with her children's needs and the absence of any sworn statement by her addressing the court's reasonable concerns.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 28, 2017

CLERK