IN RE: KAIDYN C. (Anonymous). (2026)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Queens County (Margaret Morgan, J.), dated November 1, 2024.  The order of fact-finding and disposition, insofar as appealed from, upon a decision of the same court dated October 8, 2024, as amended November 6, 2024, made after a fact-finding hearing, found that the mother neglected the subject child Zuri C. and derivatively neglected the subject child Kaidyn C.

ORDERED that the order of fact-finding and disposition is modified, on the law, by deleting the provision thereof finding that the mother neglected the subject child Zuri C. by failing to provide adequate medical care;  as so modified, the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

In February 2023, the Administration for Children's Services (hereinafter ACS) commenced these proceedings pursuant to Family Court Act article 10 against the mother, and another, alleging, inter alia, that the mother abused and neglected the subject child Zuri C. and derivatively neglected the subject child Kaidyn C. by inflicting physical injuries upon the child Zuri C. and by failing to provide the child Zuri C. with adequate medical care.  After a fact-finding hearing, in an order of fact-finding and disposition dated November 1, 2024, the Family Court, among other things, found that the mother neglected the child Zuri C. and derivatively neglected the child Kaidyn C. The mother appeals.

The mother's contention that the Family Court improperly made a finding of neglect based on the child Zuri C.'s sleeping environment because the court did not give the mother adequate notice of its decision, in effect, to conform the pleadings to the proof with respect to that allegation is unpreserved for appellate review, as it was not raised before the court (see Matter of Astilla BB. [Francis BB.], 233 A.D.3d 1309, 1312–1313, 223 N.Y.S.3d 765;  Matter of Richard S. [Lacey P.], 130 A.D.3d 630, 632–633, 14 N.Y.S.3d 400).  In any event, given the evidence adduced at the fact-finding hearing, the mother had sufficient notice that a neglect finding could be made based on the child Zuri C.'s sleeping environment, and the court's decision, in effect, to conform the pleadings to the proof was a provident exercise of discretion (see Matter of A.E.R. v. A.B., 249 A.D.3d 491, 491, 258 N.Y.S.3d 160;  Matter of Richard S. [Lacey P.], 130 A.D.3d at 633, 14 N.Y.S.3d 400).

ACS established, prima facie, that the mother neglected the child Zuri C. “At a fact-finding hearing pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected” (Matter of Jaretzy F. [Jesus F.-F.], 240 A.D.3d 892, 893, 236 N.Y.S.3d 317 [internal quotation marks omitted];  see Matter of Zaria P. [Sade G.], 240 A.D.3d 699, 700, 235 N.Y.S.3d 458;  Family Ct Act § 1046[b][i] ).  “To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Matter of Zaria P. [Sade G.], 240 A.D.3d at 700, 235 N.Y.S.3d 458 [internal quotation marks omitted];  see Matter of Malik M. [Taishona M.], 236 A.D.3d 1034, 1035, 229 N.Y.S.3d 234).

Here, ACS established by a preponderance of the evidence that the mother neglected the child Zuri C., inter alia, by permitting that child, then approximately four months old, to sleep on an air mattress next to a hot, uncovered baseboard heater, which that child fell onto, causing him injuries (see Matter of Sarah C. [Caroline C.], 132 A.D.3d 862, 862, 17 N.Y.S.3d 886;  cf.  Matter of Silas W. [Natasha W.], 207 A.D.3d 1234, 1235, 171 N.Y.S.3d 290).

ACS further established that the mother derivatively neglected the child Kaidyn C. “ ‘[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent’ ” (Matter of Nyla S. [Jason B.], 224 A.D.3d 691, 693, 205 N.Y.S.3d 167, quoting Family Ct Act § 1046[a][i] ).  “The focus of the inquiry with respect to derivative findings is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for the other child or children in the parent's care” (Matter of Remi R.C.G. [Michael M.], 237 A.D.3d 701, 702, 229 N.Y.S.3d 240 [internal quotation marks omitted];  see Matter of Chance F. [Roy F.], 238 A.D.3d 1037, 1038, 234 N.Y.S.3d 610).  Here, a preponderance of the evidence adduced at the fact-finding hearing demonstrated that the mother's neglect of the child Zuri C. evinced a flawed understanding of her duties as a parent and impaired parental judgment sufficient to support a finding of derivative neglect as to the child Kaidyn C. (see Matter of Remi R.C.G. [Michael M.], 237 A.D.3d at 702, 229 N.Y.S.3d 240;  Matter of Nash D. [Daniel D.], 224 A.D.3d 749, 751, 205 N.Y.S.3d 448).

However, the Family Court erred in finding that the mother medically neglected the child Zuri C. A neglected child includes a child whose parent has failed to provide the child with adequate medical care (see Matter of Moshae L. [Angela J.], 237 A.D.3d 821, 824, 230 N.Y.S.3d 399;  Matter of Shawndel M., 33 A.D.3d 1006, 1006, 824 N.Y.S.2d 335).  To find medical neglect, there must be a determination that the parent did not seek or accept medical care and that such failure placed the child in imminent danger of becoming impaired (see Matter of Moshae L. [Angela J.], 237 A.D.3d at 824, 230 N.Y.S.3d 399;  Matter of Nasir A. [Jamilla A.], 151 A.D.3d 959, 960–961, 54 N.Y.S.3d 701).  The most important factor in determining whether a child was deprived of adequate medical care is whether the parents have provided an acceptable course of medical treatment for the child in light of all the surrounding circumstances (see Matter of Maurice R. [Darlene R.], 157 A.D.3d 798, 799, 69 N.Y.S.3d 113;  Matter of Shawndel M., 33 A.D.3d at 1006, 824 N.Y.S.2d 335).

The mother correctly contends that ACS failed to establish by a preponderance of the evidence that she did not seek or accept medical care for the child Zuri C. and that such failure placed the child Zuri C. in imminent danger of becoming impaired (see Matter of Jahzir Barbee M. [Racine B.], 171 A.D.3d 1181,1183, 99 N.Y.S.3d 91;  Matter of Alanie H., 83 A.D.3d 1066,1068, 922 N.Y.S.2d 166).

IANNACCI, J.P., VOUTSINAS, GOLIA and MCCORMACK, JJ., concur.