SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1138 

CAF 10-01397 

PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.

 

IN THE MATTER OF ARIEL C.W.-H. 

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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

CHRISTINE W., RESPONDENT-APPELLANT,

AND DAVID H., RESPONDENT. 

(APPEAL NO. 2.) 

EFTIHIA BOURTIS, ROCHESTER, FOR RESPONDENT-APPELLANT. 

DAVID VAN VARICK, COUNTY ATTORNEY, ROCHESTER (PATRICIA WOEHRLEN OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER, FOR ARIEL C.W.-H.

 

Appeal from an order of the Family Court, Monroe County (Dandrea

L. Ruhlmann, J.), entered October 12, 2010 in a proceeding pursuant to

Family Court Act article 10. The order, among other things, adjudged

that respondent neglected the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: These consolidated appeals arise from combined child

protective proceedings pursuant to Family Court Act article 10. In

appeal No. 1, respondent mother appeals from an order that modified

prior orders of protection to include one of petitioner’s caseworkers

as a protected party. The order in appeal No. 1 was superseded by the

orders of fact-finding and disposition with respect to each of the

mother’s two youngest children that were entered after the mother

filed the notice of appeal. Those orders incorporated orders of

protection concerning representatives of petitioner. We therefore

conclude that appeal No. 1 must be dismissed (see generally Matter of

Giovanni K., 62 AD3d 1242, 1242, lv denied 12 NY3d 715). In appeal

No. 2, the mother appeals from a decision adjudicating her two

youngest children to be neglected. Although no appeal lies from a

mere decision (see Kuhn v Kuhn, 129 AD2d 967), we exercise our

discretion to treat the notice of appeal as valid and deem the appeal

from the decision as two appeals taken from the orders of fact-finding

and disposition with respect to each child (see generally CPLR 5520

[c]; Matter of Morgan P., 60 AD3d 1362).

The mother failed to preserve for our review her contention that
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CAF 10-01397 

Family Court lacked the authority to impose an order of protection in

favor of petitioner’s representatives (see generally Matter of Pauline

E. v Renelder P., 37 AD3d 1145, 1146; Matter of Barker v Dorman, 292

AD2d 806), and we decline to address that contention in the interest

of justice. Contrary to the mother’s further contention, the court

properly granted petitioner’s motion to conform the pleadings to the

proof. The court has the discretion to “amend the allegations to

conform to the proof” (Family Ct Act § 1051 [b]), and it is an abuse

of discretion to withhold permission for such an amendment “ ‘unless

the opposing party can allege demonstrable and real surprise or

prejudice’ ” (Matter of Simonds v Kirkland, 67 AD3d 1481, 1483). 

Here, the mother conceded that her objection to petitioner’s motion to

conform the pleadings to the proof was not based upon surprise, and

the record establishes that she did not suffer any demonstrable

prejudice when the court conformed the pleadings to the proof and

considered evidence concerning events that occurred subsequent to the

filing of the neglect petitions.

We reject the mother’s contention that petitioner failed to

establish that she neglected the subject children. The mother’s

neglect of those children may be established by evidence that she

previously neglected another child, coupled with “evidence that [she]

failed to address the mental health issues that led to [the prior]

neglect determination[]” (Matter of Sasha M., 43 AD3d 1401, 1402; see

Family Ct Act § 1046 [a] [i]; Matter of Krystal J., 267 AD2d 1097). 

In this case, the mother’s parental rights were terminated with

respect to one of her older children on the ground of mental illness

during the neglect proceedings concerning the subject children. These

neglect proceedings were also based on a theory that the mother was

unable to care for the subject children because of her untreated

mental illness. Inasmuch as the record contains evidence indicating

that the mother continued to experience mental health problems related

to her schizophrenia and had been hospitalized twice for mental

health-related issues after her parental rights with respect to the

older child were terminated, we conclude that the court’s neglect

determination with respect to the subject children is supported by the

requisite preponderance of the evidence (see § 1046 [b] [i]; see

generally Sasha M., 43 AD3d at 1402; Krystal J., 267 AD2d 1097).

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court