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.,
Michael
A. Cardozo, Corporation Counsel,
Paulson of counsel), for respondent.
Tamara
A. Steckler, The Legal Aid
Society,
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