In re Amber VV.
Mugglin, J. Appeal from an order of the Family Court of St.
As the result of petitions filed in November 2002 by petitioner, the three children who arе the subject of these proceedings—Amber VV. (born in 1986), Daniel VV. (born in 1987) and Michael VV. (born in 1989)—were adjudicated, on consent, to be neglected by their parents, Jeffrey VV. (hereinafter the father) and Patricia OO. (hereinafter the mother). A dispositional order dated September 3, 2003, as gеrmane hereto, placed Daniel in the custodial care of the mother, subject tо supervision by petitioner. On August 22, 2003, petitioner charged respondent, the children‘s stepfather, with neglect of Amber and derivative neglect of Daniel and Michael. Following an evidentiаry hearing, respondent was found to have neglected the three children. Respondent аppeals, conceding neglect of Amber but contesting the determination that he derivаtively neglected Daniel and Michael. Based on respondent‘s adjudication of neglect of Daniel, the father sought modification of the September 3, 2003 dispositional order rеquesting that he be granted custody of Daniel. This request was denied by Family Court and the father also аppeals.
First, with respect to the derivative neglect finding, respondent‘s concession results from his having furnished to and smoked marihuana with Amber several times a week from June 2002 to July 2003. He cоntends, however, that since this never occurred in the presence of Daniel or Michael, a derivative neglect finding is inappropriate.
Furnishing to and smoking marihuana with a child “demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in respondent‘s care” (Matter of Daniella HH., 236 AD2d 715, 716 [1997]). Because Daniel was continuously a member of respondent‘s household and because he is particularly vulnerable due to his cerеbral palsy and his school classification of mental retardation, we concur in Family Court‘s determination that respondent derivatively neglected Daniel. Michael, however, was not in respondent‘s care because, except for 23 days, he either briefly lived with his father, was in foster care or was confined to the St. Lawrence Psychiatric Center. Thus, there is insufficient evidence in this record to support a finding of derivative neglect as to him.
Respondent also claims that Family Court failed to state the grounds for the derivative neglect finding (see
We next address the father‘s appeal from Family Court‘s refusal to transfer custody of Daniel to him. The father points to respondent‘s conduct and his adjudication as a neglectful parent as the single basis for transfer of custody. To obtain modification of a dispositional order made in a child protective proceeding, “good cause” must be established (see
Cardona, P.J., Mercure, Crew III аnd Carpinello, JJ., concur.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as found respondent to have derivatively neglected Michael VV., and, as so modified, affirmed.
MUGGLIN, J.