        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

796
CAF 10-01520
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF ANGEL L.H.
--------------------------------------
CHAUTAUQUA COUNTY DEPARTMENT OF SOCIAL           MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;

MELISSA H., RESPONDENT-APPELLANT,
AND MATTHEW H., RESPONDENT.


ALAN BIRNHOLZ, EAST AMHERST, FOR RESPONDENT-APPELLANT.

JANE E. LOVE, MAYVILLE, FOR PETITIONER-RESPONDENT.

NANCY A. DIETZEN, ATTORNEY FOR THE CHILD, FREDONIA, FOR ANGEL L.H.


     Appeal from an order of the Family Court, Chautauqua County
(Judith S. Claire, J.), entered June 18, 2010 in a proceeding pursuant
to Family Court Act article 10. The order, among other things,
adjudged that respondent Melissa H. had neglected her daughter.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent mother appeals from an order determining that
she derivatively neglected the subject child. Because the mother did
not object to the admission of postpetition evidence, her present
challenge to that evidence is unpreserved for our review (see Matter
of Darren HH., 68 AD3d 1197, 1198, lv denied 14 NY3d 703). In any
event, although “petitioner should have moved to amend the petition,
[inasmuch as] this evidence was received without objection by [either]
respondent, we exercise our power, in the interest of justice, to sua
sponte conform the petition to the evidence” (Matter of Amanda RR.,
293 AD2d 779, 780).

     Contrary to the mother’s further contention, Family Court’s
finding of derivative neglect is supported by the requisite
preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). It
is well settled that a derivative finding of neglect is warranted
where, as here, the mother’s neglect of the subject child “ ‘is so
closely connected with the care of another child as to indicate that
the [subject] child is equally at risk’ ” (Matter of A.R., 309 AD2d
1153, 1153, quoting Matter of Marino S., 100 NY2d 361, 374, cert
denied 540 US 1059). We agree with the court that the nature,
duration, and circumstances surrounding the neglect of the mother’s
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                                                         CAF 10-01520

other children “ ‘can be said to evidence fundamental flaws in the
[mother’s] understanding of the duties of parenthood’ ” (Matter of
Cadejah AA., 33 AD3d 1155, 1157), justifying the finding that the
mother derivatively neglected the subject child.




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
