In re Erica D.

 

Matter of Erica D. v Maria D.

2010 NY Slip Op 07471

Decided on October 21, 2010

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

 

 

Decided on October 21, 2010

Gonzalez, P.J., Andrias, Nardelli, McGuire, Abdus-Salaam, JJ.

 

3401

 

[*1]In re Erica D., A Child Under the Age of Eighteen Years, etc.,

 

and

 

Maria D., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

 

 

George E. Reed, Jr., White Plains, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Susan

Paulson of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Amy

Hausknecht of counsel), Law Guardian.

 

 

Order of fact-finding and disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about March 13, 2009, which found that respondent mother neglected the subject child, and placed the child with the Commissioner of Social Services pending the completion of the next scheduled permanency hearing, unanimously affirmed with respect to the finding of neglect, and the appeal otherwise dismissed as moot, without costs.

 

Although the agency failed to meet its burden of showing educational neglect by a preponderance of the evidence, the record supports the alternative theory of neglect advanced by the agency of inadequate guardianship and supervision (see Matter of Satori R., 202 AD2d 432, 433 [1994]). The evidence shows that the child has Down's Syndrome with autistic features, requiring constant care, while the mother herself has a full-scale IQ of around 50. Although a parent's mental retardation will not support a finding of neglect per se (see Matter of Trina Marie H., 48 NY2d 742, 743 [1979]), a preponderance of the evidence here demonstrates that, given her daughter's intense needs and her own limitations, the mother was unable to provide adequate care for her daughter, thus creating an imminent risk of harm to the child (see Matter of Lashina P., 52 AD3d 293, 294 [2008]; Matter of Anna X., 148 AD2d 890 [1989], lv denied 74 NY2d 608 [1989]).

 

The mother's appeal from the dispositional order is rendered moot by the subsequent entry of an order continuing placement, as well as the subsequent termination of her parental rights (see Matter of Breeyanna S., 45 AD3d 498 [2007], lv denied 10 NY3d 706 [2008]).

 

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

 

ENTERED: OCTOBER 21, 2010

 

CLERK

 

 

 

 

 

 

 

 

 

 

 

 

 

Return to Appeals list