IN RE: AIDEN XX. and Another

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IN RE: AIDEN XX. and Another, Alleged to be Neglected Children. Tompkins County Department of Social Services, Respondent; Jesse XX., Appellant. (And Another Related Proceeding.).

Decided: March 28, 2013

Before: PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ. Samuel D. Castellino, Elmira, for appellant. Daniel S. Feder, Tompkins County Department of Social Services, Ithaca, for Tompkins County Department of Social Services, respondent. David M. Abbatoy Jr., Rochester, for Chatesha YY., respondent. Donna C. Chin, Ithaca, attorney for the children.

Appeal from an order of the Family Court of Tompkins County (Sherman, J.), entered September 22, 2011, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent's children to be neglected.

Chatesha YY. (hereinafter the mother) is the mother of two sons, Aiden XX. (born in 2004) and Jeremiah XX. (born in 2005). Respondent, the biological father of Jeremiah, obtained custody of both children in December 2009. Subsequently, petitioner received a child protective report alleging that, in March 2011, while the children were under his care, respondent was arrested in Massachusetts and charged with intent to distribute narcotics, assault and battery on a police officer, resisting arrest and disorderly conduct. It was further reported that the children were taken to a hospital for treatment of suspected malnutrition and ringworm, at which time one of the children reportedly tested positive for marihuana.

As a result of these allegations, petitioner commenced a Family Ct Act article 10 proceeding alleging that respondent neglected both children. Family Court granted petitioner's motion for summary judgment and issued a fact-finding order adjudicating both children to be neglected. In its written decision, the court declined to consider the Massachusetts police and hospital records submitted by petitioner because they were not in admissible form; however, the court found that the general allegations of neglect in the petition concerning respondent's March 2011 arrest were “amplified” by the court's own “determinations” set forth in its order directing a mental health evaluation.1 Drawing an adverse inference based upon respondent's failure to submit to a mental health evaluation, the court held that, if respondent had obeyed the court's order, the ensuing report “would have shown that he suffers from a mental illness and/or other emotional problems requiring treatment, and that the failure to obtain that treatment has resulted in him being unable to provide appropriate care and supervision of the children.”2 Thereafter, following a dispositional hearing chiefly addressing the separate custody petition brought by the mother, an order of disposition was issued, which, among other things, granted custody of the children to the mother. Respondent now appeals from the order of disposition,3 contending that the court erred in granting summary judgment to petitioner and also in denying his request to proceed pro se in the neglect proceedings.4

Family Court erred in granting petitioner's motion for summary judgment on the neglect petition. “To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child's physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care” (Matter of Stevie R. [Arvin R.], 97 A.D.3d 906, 907 [2012] [citations omitted]; see Family Ct Act § 1012[f] ). While summary judgment is not routinely invoked in such matters, it is, nonetheless, “an appropriate procedural device to be utilized in a Family Ct Act article 10 proceeding where no triable issues of fact exist” (Matter of Tavianna CC. [Maceo CC.], 99 A.D.3d 1132, 1133 [2012], lv denied 20 N.Y.3d 856 [2013] ).

On this record, summary judgment was improperly granted. Significantly, the petition as filed only alleges that respondent neglected the children as a result of the events surrounding respondent's March 2011 arrest. Nevertheless, Family Court granted the petition based on “amplified” allegations of neglect that it found related to the father's alleged untreated mental illness. No amended petition was filed nor was respondent given an opportunity to amend his answer. While a court may amend the allegations in a neglect proceeding “to conform to the proof[,] ․ in such case the respondent shall be given reasonable time to prepare to answer the amended allegations” (Family Ct Act § 1051[b]; see Matter of Kila DD., 28 A.D.3d 805, 806 [2006] ).

Here, as respondent was not given an opportunity to respond to these new allegations, he was denied his right of sufficient notice (see Matter of Blaize F., 50 A.D.3d 1182, 1184–1185 [2008]; Matter of Latifah C., 34 A.D.3d 798, 800 [2006]; Matter of Shawniece E., 110 A.D.2d 900, 900–901 [1985]; see also Matter of Burola v. Meek, 64 A.D.3d 962, 964 [2009]; compare Matter of Kila DD., 28 A.D.3d at 806, 812 N.Y.S.2d 700). While such a circumstance can be overlooked if sufficient proof was presented to sustain the original petition without considering the new allegations (see Matter of Paige AA. [Anthony AA.], 85 A.D.3d 1213, 1216 [2011], lv denied 17 N.Y.3d 708 [2011] ), such proof was not presented in this case.

Petitioner moved for summary judgment principally relying on the factual evidence surrounding the events occurring in March 2011, as set forth in the Massachusetts police and hospital records obtained by a judicial subpoena duces tecum, which included, among other things, a positive drug test result for one of the very young children with special needs in respondent's care (see generally Matter of Dakota CC. [Arthur CC.], 78 A.D.3d 1430 [2010] ). Family Court correctly found, however, that petitioner failed to submit these records in admissible form (see CPLR 4518; see also CPLR 3122–a). Thus, the only sources of admissible proof submitted by petitioner were the affidavits from two of petitioner's caseworkers.5 One of the affidavits recounts the unsuccessful attempts to facilitate respondent's psychological evaluation. The other affidavit describes, along with certain hearsay conversations that the caseworker had with Massachusetts authorities, a brief conversation with respondent wherein he acknowledged that he was arrested and did not deny that the children were present at the time, nor did he “offer any explanation or denial of the positive toxicology of Aiden.” Under the circumstances, we cannot conclude that these equivocal statements and silences constituted affirmative proof of neglect sufficient to satisfy petitioner's initial burden on a summary judgment motion (see CPLR 3212[b] ). Accordingly, the matter must be remitted for a fact-finding hearing (see Matter of Suzanne RR., 35 A.D.3d 1012, 1013–1014 [2006] ).

Given the above result, it is unnecessary to dwell at any length upon respondent's further claim that a new hearing should be granted because he was improperly denied the right to represent himself in the neglect proceedings (see generally Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380 [2011] ). Not only did respondent engage in disruptive behavior at the initial removal hearing that required him to be forcibly escorted from the courtroom, but his failure at later appearances to state a rational and unequivocal request to proceed pro se convinces us that Family Court did not abuse its discretion in assigning counsel. Given respondent's periodic disruptive outbursts and failure to complete the ordered mental health evaluation, any concern on the court's part over respondent's competency to proceed pro se was clearly legitimate (see Matter of Anthony K., 11 A.D.3d 748, 749–750 [2004]; see also People v. Gilbo, 52 A.D.3d 952, 954–955 [2008], lv denied 11 N.Y.3d 788 [2008]; People v. Eady, 301 A.D.2d 965, 966 [2003], lv denied 100 N.Y.2d 538 [2003]; , 763 N.Y.S.2d 3, 793 N.E.2d 417 33 Carmody–Wait 2d §§ 184:83, 184:96).

All remaining issues not specifically addressed above have been examined and found to be unpersuasive or rendered academic under the circumstances.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted petitioner's motion for summary judgment on the neglect petition; motion denied; matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

McCARTHY, J.

PETERS, P.J., LAHTINEN and EGAN JR., JJ., concur.

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