In the Matter of JERRELL OO.,Alleged to be a NeglectedChild.SARATOGA COUNTY DEPARTMENT OF MEMORANDUM AND ORDERSOCIAL SERVICES,Respondent;ANDREW OO.,Appellant.________________________________Calendar Date: April 24, 2018Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________Law Offices of Martin & Martin, Glens Falls (Michael S.Martin of counsel), for appellant.Steven M. Dorsey, County Attorney, Ballston Spa (Michael J.Hartnett of counsel), for respondent.Nicole R. Rodgers, Saratoga Springs, attorney for thechild.__________Pritzker, J.Appeal from an order of the Family Court of Saratoga County(Skoda, J.), entered October 8, 2015, which granted petitioner’sapplication, in a proceeding pursuant to Family Ct Act article10, to adjudicate the subject child to be derivatively neglected.Petitioner commenced this neglect proceeding alleging thatrespondent, who is the maternal uncle of two children (born in1999 and 2004), neglected the older child and derivativelyneglected the younger child. In March 2014, respondent admittedthe allegations contained in the petition and, based upon theadmission, Family Court made a finding of neglect and derivativeneglect, further ordering that the proceeding be adjourned incontemplation of dismissal (hereinafter ACD) for one year (seeFamily Ct Act § 1039 [a]). The ACD directed respondent to complywith certain terms and conditions.In January 2015, petitioner moved to restore the proceedingto Family Court’s calendar with respect to only the younger child(see Family Ct Act § 1039 [e]) based upon allegations thatrespondent violated two terms and conditions of the ACD bydenying petitioner’s caseworker access to respondent’s bedroomduring home visits and failing to cooperate with petitioner bynot meeting or contacting the assigned caseworker. Family Courtconducted a hearing and, after determining that respondentsubstantially failed to comply with these terms of the ACD, theneglect proceeding was restored and, as respondent alreadyadmitted neglect, the matter was scheduled for a dispositionalhearing. Petitioner subsequently informed Family Court by letterthat it would not be presenting any evidence at the dispositionalhearing nor would it be seeking any further orders or remedialservices. Family Court then issued an order, reiterating thederivative neglect finding and, on consent of the parties,imposed no additional conditions or restrictions upon respondent.Respondent now appeals. We affirm.Petitioner’s caseworker testified at the hearing that shemade 19 scheduled visits to respondent’s home, left seven lettersfor respondent at his home and left several telephone messagesfor respondent during the pendency of the ACD. The caseworkertestified that respondent was not home for any of those visitsand that she was prevented access to respondent’s bedroom asthere was a keypad on the door. We reject respondent’s argumentthat the home was controlled by his parents and that, because theACD does not specifically mention his bedroom as a place to besearched, he was not aware of the requirement that petitionerhave access to his bedroom. Respondent’s bedroom, which is apart of the home and a place where the younger child sleeps, is areasonable and foreseeable place that petitioner would need toinspect. Furthermore, the ACD made clear that respondent wasrequired to cooperate with petitioner, and one of thecaseworker’s letters specifically requested access torespondent’s bedroom. The testimony at the hearing alsoestablished that respondent failed to contact and cooperate withpetitioner, and we find no merit to respondent’s argument thatthere is no proof that he received the caseworker’s telephonemessages or letters given the testimony that respondent calledthe caseworker’s office at least once. Moreover, given thesignificant number of home visits, letters and telephone messagesleft for respondent, it is highly likely that he was aware thatpetitioner was attempting to contact him but that he failed torespond. Therefore, Family Court’s determination that respondentfailed to substantially observe the terms and conditions of theACD was amply supported by the record (see generally Matter ofJames S. [Annemarie R.], 90 AD3d 1099, 1100-1101 [2011]; Matterof Brent B., 279 AD2d 817, 818 [2001], lv denied 96 NY2d 712[2001]).1Further, we cannot agree with respondent’s contention thatpetitioner’s motion to restore the proceeding was malicious andmade in bad faith. It is evident from the record thatpetitioner’s motion was filed based upon respondent’s failure toadhere to the terms and conditions of the ACD. We also disagreewith respondent’s argument that the letter written by petitionerto Family Court, prior to the dispositional hearing, demonstratedpetitioner’s malice. The letter stated that petitioner would notbe presenting any evidence at the hearing nor would it be seekingany orders or services, as its involvement was only hurting theyounger child, who clearly enjoyed his relationship withrespondent and never verbalized any concerns. Therefore, we donot discern any malice or bad faith on the part of petitioner.Lynch, J.P., Devine, Mulvey and Aarons, JJ., concur.ORDERED that the order is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
