         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
600
CAF 09-02566
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


IN THE MATTER OF SOPHIA M.G.-K.
-------------------------------------------
MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,      MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

TRACY G.-K., RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR RESPONDENT-APPELLANT.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (PETER A. ESSLEY OF
COUNSEL), FOR PETITIONER-RESPONDENT.

BETH A. RATCHFORD, ATTORNEY FOR THE CHILD, ROCHESTER, FOR SOPHIA
M.G.-K.


     Appeal from an order of the Family Court, Monroe County (Dandrea
L. Ruhlmann, J.), entered November 13, 2009 in a proceeding pursuant
to Family Court Act article 10. The order, among other things,
adjudicated the subject child to be a neglected child.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating ordering paragraph 1-C and
as modified the order is affirmed without costs.

     Memorandum: Respondent mother appeals from an order that
adjudicated the child who is the subject of this proceeding to be a
neglected child. We conclude that Family Court properly determined
that the child is a neglected child based upon the derivative evidence
that four of the mother’s other children were determined to be
neglected children (see Matter of Sasha M., 43 AD3d 1401; Matter of
Amber C., 38 AD3d 538, 540-541, lv denied 8 NY3d 816, lv dismissed 11
NY3d 728; see generally Family Ct Act § 1046 [a] [i]), “including the
evidence that [the mother] had failed to address the mental health
issues that led to those neglect determinations and the placement of
the custody of those children with petitioner” (Sasha M., 43 AD3d at
1402; see Matter of Krystal J., 267 AD2d 1097; Matter of Daequan FF.,
243 AD2d 922). Further, the finding of neglect with respect to one of
the mother’s other children was entered approximately two months prior
to the birth of the child in question, and thus “the prior finding
[with respect to that older child] was so proximate in time to the
derivative proceeding[] that it can reasonably be concluded that the
condition still exist[ed]” (Matter of Hannah UU., 300 AD2d 942, 944,
lv denied 99 NY2d 509 [internal quotation marks omitted]; see Amber
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                                                         CAF 09-02566

C., 38 AD3d at 541).

     We agree with the mother, however, that the court erred in
including in the dispositional order a provision requiring her to
comply with the treatment recommendations of a mental health
evaluation report that was neither admitted in evidence at the fact-
finding hearing nor included in the record on appeal. We therefore
modify the order accordingly.

     We reject the mother’s further contention that the court abused
its discretion in denying the request of her attorney for an
adjournment so that the mother, who was not present at the time, could
testify and he could subpoena an additional witness. In support of
that request, the mother’s attorney offered nothing beyond a “vague
and unsubstantiated claim that the [mother] could not appear due to an
emergency” (Matter of Sanaia L., 75 AD3d 554, 555). Further, the
mother’s attorney failed to demonstrate that the need for the
adjournment to subpoena the witness was not based on a lack of due
diligence on the part of the mother or her attorney (see Matter of
Venditto v Davis, 39 AD3d 555).




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
