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In re Enrique S.

134 A.D.3d 576 Court N.Y. App. Div. Decision date 2015-12-22 English

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p. 576
In the Matter of Enrique S. and Others, Children Alleged to be Neglected. Kelba C.S., Appellant; Administration for Children’s Services, Respondent, et al., Respondent.
[23 NYS3d 30]

Order of fact-finding and disposition (one paper) of the Family Court, New York County (Stewart H. Weinstein, J.), entered on or about December 1, 2014, which, to the extent appealed from as limited by the briefs, determined that respondent father had neglected the subject children, unanimously affirmed, without costs.

p. 577
The finding of neglect is supported by a preponderance of the evidence (see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). The record evidences the father’s untreated mental illness, aggressive and violent behavior towards the mother, and his admission that he had been diagnosed with bipolar disorder, which raised the substantial probability of neglect that would place the children at imminent risk of impairment if released to his care (see Matter of Liarah H. [Dora S.], 111 AD3d 514 , 515 [1st Dept 2013]; Matter of Cerenithy Ecksthine B. [Christian B.], 92 AD3d 417 [1st Dept 2012]).

Furthermore, the court properly granted petitioner agency’s motion to amend the petition to conform to the evidence (Family Ct Act § 1051 [b]). The record demonstrates that the father had ample notice of the new allegations and an opportunity to respond (see Matter of Aaron C. [Grace C.], 105 AD3d 548 [1st Dept 2013]; Matter of Madison H. [Demezz H. — Tabitha A.], 99 AD3d 475 , 476 [1st Dept 2012]). In addition to meeting its burden of showing that the father neglected the subject children by reason of his mental illness, the record supports the alternative theory of neglect advanced by the agency based on the failure of the father to protect the children from the mother’s neglect, which he knew, or should have known, created a risk of harm to them (see Matter of Erica D. [Maria D.], 77 AD3d 505 [1st Dept 2010]; Matter of Christy C. [Roberto C.], 77 AD3d 563 [1st Dept 2010]). Concur — Tom, J.P., Renwick, Saxe and Kapnick, JJ.

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