IN RE: CHANCE Y. (2019)

Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about January 5, 2018, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about August 23, 2017, which found that respondent neglected the subject children, unanimously affirmed, without costs.  Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

Respondent failed to preserve her argument that Family Court Act § 1046(b)(i) violates the Constitution insofar as it permits a child to be removed from a parent's care and placed into foster care upon evidence that is less than clear and convincing.  In any event, the argument is unavailing.  “In a fact-finding hearing to determine whether a child is abused or neglected, the provision of Family Court Act § 1046(b) that a finding of neglect ‘must be based on a preponderance of the evidence’ affords due process under the Federal Constitution” (Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985] ).

The finding of neglect is supported by a preponderance of the evidence, which showed that respondent was paranoid and delusional, which affected her ability to care for the children (see Matter of Ruth Joanna O.O. [Melissa O.], 149 A.D.3d 32, 49 N.Y.S.3d 374 [1st Dept. 2017], affd 30 N.Y.3d 985, 65 N.Y.S.3d 122, 87 N.E.3d 154 [2017] ).  When the petition was filed, the children, who were then three years old and one year old, were dependent on respondent's care.  Medical records demonstrate that respondent showed signs of delusional disorder, paranoid schizophrenia, brief psychotic disorder, and depression with psychosis.  Other evidence demonstrates that respondent made repeated unfounded allegations of physical and sexual abuse against her mother's longtime male companion, including the allegation that the children, who were nonverbal, articulated sentences describing sexual abuse, and that the companion had burned the children's hands and feet, although a physical examination revealed no marks on them.  Respondent also insisted that the children undergo further invasive medical examinations because she was not satisfied that the reports showed no sign of abuse.