IN RE: SEBASTIAN R. (Anonymous). (2019)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an order of the Family Court, Queens County (Diane Costanzo, J.), dated June 28, 2017, and (2) an order of disposition of the same court dated February 22, 2018.  The order dated June 28, 2017, insofar as appealed from, granted that branch of the petitioner's motion which was for summary judgment on so much of the petition as sought a finding that the mother derivatively neglected the subject child.  The order of disposition dated February 22, 2018, insofar as appealed from, upon the order dated June 28, 2017, and upon consent, released the child to the custody of the father under the petitioner's supervision and directed that the mother would have only supervised parental access with the child.

ORDERED that the appeal from the order dated June 28, 2017, is dismissed, without costs or disbursements, as the portion of that order appealed from was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition;  and it is further,

ORDERED that the appeal from so much of the order of disposition as released the child, upon consent, to the custody of the father under the petitioner's supervision and directed that the mother would have only supervised parental access with the child, is dismissed, without costs or disbursements;  and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

The appeal from so much of the order of disposition as released the child, upon consent, to the custody of the father under the petitioner's supervision and directed that the mother would have only supervised parental access with the child must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Naphtali A. [Winifred A.], 165 A.D.3d 781, 85 N.Y.S.3d 512;  Matter of Maurice M. [Suzanne H.], 158 A.D.3d 689, 68 N.Y.S.3d 740).  However, the appeal from so much of the order of disposition as brings up for review the finding of derivative neglect is properly before the Court, as the finding of derivative neglect was the subject of contest in the Family Court (see James v. Powell, 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741;  Matter of Kieara N. (Shasha F.), 167 A.D.3d 620, 621, 89 N.Y.S.3d 232).

We agree with the Family Court's determination granting that branch of the petitioner's motion which was for summary judgment on so much of the petition as sought a finding that the mother derivatively neglected the child.  The petitioner made a prima facie showing of derivative neglect of the child based on a prior finding that the mother had neglected four of her older children (see Matter of Jerell P. [Qubilah G.], 157 A.D.3d 443, 66 N.Y.S.3d 136;  Matter of Camarrie B. [Maria R.], 107 A.D.3d 409, 966 N.Y.S.2d 415).  The mother failed to raise a triable issue of fact in opposition.  Although the prior acts of neglect occurred before the subject child was born, taking into account the nature of the mother's conduct and other pertinent considerations, the conduct that formed the basis for a finding of neglect as to the older children is so proximate in time to the instant derivative proceeding that it can reasonably be concluded that the condition still exists (see Matter of Delilah D. [Richard D.], 155 A.D.3d 723, 64 N.Y.S.3d 67;  Matter of Hope P. [Stephanie B.], 149 A.D.3d 947, 948, 52 N.Y.S.3d 446).  The mother failed to sustain her burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future (see Matter of Hope P. [Stephanie B.], 149 A.D.3d at 948, 52 N.Y.S.3d 446;  Matter of Baby Boy D. [Adanna C.], 144 A.D.3d 1026, 43 N.Y.S.3d 367).  Since the mother failed to present any evidence to either rebut the petitioner's prima facie showing or establish that the condition leading to the neglect finding as to the other children no longer existed, we agree with the Family Court's finding of derivative neglect (see Matter of Madison B. [Daniel B.], 123 A.D.3d 1027, 999 N.Y.S.2d 496;  Matter of Jeremiah I.W. [Roger H.W.], 115 A.D.3d 967, 982 N.Y.S.2d 516).

BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.