IN RE: UNIQUE S. T. (2023)

Fact-finding order, Family Court, New York County (Patria Frias–Colon, J.), entered on or about March 17, 2021, which determined, after a hearing, that respondent mother derivatively neglected the subject child, unanimously affirmed, without costs.

Petitioner made a prima facie showing of derivative neglect as to the subject child (see Matter of Phoenix J. [Kodee J.], 129 A.D.3d 603, 603, 12 N.Y.S.3d 64 [1st Dept. 2015]).  There are three prior orders finding that the mother neglected the child and two of his siblings as well as an order terminating her parental rights to his older sibling before the instant petition was filed, which established that the mother still suffered from such an impaired level of parental judgment as to create a substantial risk of harm for any child in her custody (see e.g. Matter of Nayomi M. [Paul R.], 147 A.D.3d 413, 414, 46 N.Y.S.3d 102 [1st Dept. 2017]).  That the last finding was entered against the mother around 18 months before this petition was filed against her does not establish that the prior findings are necessarily too remote in time to support a finding of derivative neglect (see Matter of Jamil S. [Shaaniel T.], 156 A.D.3d 585, 67 N.Y.S.3d 613 [1st Dept. 2017];  Matter of Jayden C. [Luisanny A.], 126 A.D.3d 433, 433–444, 2 N.Y.S.3d 349 [1st Dept. 2015]).  The record shows that in 2016, about a year before the instant petition was filed against the mother, orders of protection were issued directing her to stay away from the subject child and a younger sibling, and that the order of protection regarding that younger sibling was still in effect when this proceeding commenced.

Furthermore, the mother does not dispute that the child and his siblings have not returned to her care, or that the two orders entering derivative neglect findings against her regarding two of the child's younger siblings, after the instant petition was filed, were based on her failure to comply with her court-ordered service plan, thus further establishing that her neglectful conduct continued (see Matter of A'Nyia P.G. [Qubilah C.T.G.], 176 A.D.3d 495, 496, 108 N.Y.S.3d 341 [1st Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 728686 [2020];  Matter of Jerell P. [Qubilah G.], 157 A.D.3d 443, 443, 66 N.Y.S.3d 136 [1st Dept. 2018]).  Although the Family Court did not state that it was drawing a negative inference against the mother for failing to testify at the fact-finding hearing, it was entitled to do so (see Matter of Christina G. [Vladimir G.], 100 A.D.3d 454, 454, 957 N.Y.S.2d 1 [1st Dept. 2012], lv denied 20 N.Y.3d 859, 2013 WL 537153 [2013]).