Matter of Marchella P. (Loretta B.-B.)
Appeals from (1) an order of fact-finding of the Family Court, Kings County (llana Gruebel, J.), dated July 23, 2012, (2) an order of fact-finding of that court dated July 8, 2013, and (3) an order of disposition of that court dated March 28, 2014. The order of fact-finding dated July 23, 2012, insofar as appealed from, upon granting the petitioner’s motion for summary judgment, found that the maternal grandmother Lоretta B.-B. derivatively abused the children Tyemel P. and Tyeqail P. The
Ordered that the appeals from the orders of fact-finding dated July 23, 2012, and July 8, 2013, respectively, are dismissed, without costs or disbursements, as those orders were superseded by the order of disposition аnd are brought up for review on the appeal from the order of disposition; and it is further,
Ordered that the fathеr’s appeal from the order of disposition is dismissed, without costs or disbursements, except with respect to matters which were the subject of contest
(see
Ordered that the order of disposition is affirmed insofar as reviewed, withоut costs or disbursements.
In September 2010, four-year-old Marchella P. died while in the care of her mother and maternal grandmother, Loretta B.-B. (hereinafter the maternal grandmother). Based upon the autopsy results, the manner of her death was a homicide, and the cause of death was child abuse syndrome, acute drug poisoning, blunt impact injuries, and malnutrition with dehydration. Thereafter, the Administration for Children’s Services (hereinafter ACS) filed petitions against Marchella P.’s mother and the maternal grandmother, alleging that they abused Marchella P. and derivatively аbused her brothers Tyemel P. and Tyeqail R, and that the father neglected Marchella P. and derivatively neglectеd Tyemel P. and Tyeqail P. ACS further alleged that the father neglected all three children based upon his misuse of marijuаna.
Subsequently, the maternal grandmother was convicted of manslaughter in the second degree, unlawful imprisonmеnt in the second degree, and endangering the welfare of a child in connection with Marchella P.’s death. Fоllowing her conviction, ACS moved for summary judgment against the maternal grandmother. Her counsel did not opposе the motion. In an order of fact-finding dated July 23, 2012, the Family Court found, inter alia, that the maternal grandmother abused Marсhella R, and derivatively abused Tyemel P. and Tyeqail P. In an order dated July 8, 2013, after a fact-finding hearing, the court found that the father neglected Marchella R, derivatively
Contrary to the maternal grandmother’s contentions, she was not deprived of the effectivе assistance of counsel. The maternal grandmother’s criminal convictions during the period of time that Tyemel P. and Tyeqail P. were present in her home and also being cared for by her demonstrates that any argument her counsel could have made in opposition to summary judgment on the issue of her derivative neglect of thosе children would have had little or no likelihood of success
(see People v Caban,
Since the order of disposition appealed from was made upon the father’s default, review on his appeal is limited to matters which were the subjeсt of contest in the Family Court
(see Matter of Yu F. [Fen W.],
ACS demonstrated by a preponderance of the evidence that the fathеr neglected Marchella R, since the father knew or should have known of the abuse inflicted upon Marchеlla P. by the mother and maternal grandmother, and failed to take any action to protect Marchella P.
(see Matter of Iouke H. [Terrence H.],
Contrary to the father’s contention, the Family Court’s finding that he neglected all three children bаsed upon his misuse of marijuana is supported by a preponderance of the evidence (see Family Ct Act § 1046 [a] [iii]).