Opinion
2014-00631, 2015-01239, 2015-01240 (Docket Nos. N-27695-10, N-27696-10, V-4914-09)
03-11-2015
In the Matter of JAELIN L. (Anonymous). Administration for Children's Services, et al., petitioners-respondents; Kimrenee C. (Anonymous), respondent-appellant. (Proceeding No. 1) In the Matter of Ashton B. (Anonymous). Administration for Children's Services, et al., petitioners-respondents; Kimrenee C. (Anonymous), respondent-appellant. (Proceeding No. 2) In the Matter of Bartholomew A. (Anonymous), petitioner-respondent, v. Kimrenee C. (Anonymous), respondent-appellant. (Proceeding No. 3).
Larry S. Bachner, Jamaica, N.Y., for appellant. Zachary W. Carter, New York, N.Y. (Richard Dearing and Devin Slack of counsel), for petitioner-respondent Administration for Children's Services. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child Jaelin L. Teresita Morales, Jamaica, N.Y., attorney for the child Ashton B. Catherine S. Bridge, Staten Island, N.Y., for petitioner-respondent Bartholomew A.
Larry S. Bachner, Jamaica, N.Y., for appellant.
Zachary W. Carter, New York, N.Y. (Richard Dearing and Devin Slack of counsel), for petitioner-respondent Administration for Children's Services.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child Jaelin L.
Teresita Morales, Jamaica, N.Y., attorney for the child Ashton B. Catherine S. Bridge, Staten Island, N.Y., for petitioner-respondent Bartholomew A.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion Appeals from three orders of disposition of the Family Court, Queens County (Marybeth S. Richroath, J.), each dated December 5, 2013. The first order, insofar as appealed from, inter alia, placed the child Jaelin L. in the custody of the Commissioner of Social Services until the conclusion of the next permanency hearing. The second order, insofar as appealed from, inter alia, placed the mother under the supervision of the Administration for Children's Services with respect to her visitation with the child Ashton B. upon the award of custody to the father. The third order granted the father's petition for a final order of custody of the child Ashton B. The appeals from the first two orders of disposition bring up for review an order of fact-finding of that court dated July 9, 2012, which, after a hearing, found that the mother had neglected the child Jaelin L. and derivatively neglected the child Ashton B.
ORDERED that on the Court's own motion, the notice of appeal from a decision dated December 5, 2013, is deemed to be a notice of appeal from the three orders of disposition dated December 5, 2013 (CPLR 5512[a] ); and it is further,
ORDERED that the first two orders of disposition are affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the third order of disposition is affirmed, without costs or disbursements.
In its fact-finding order dated July 9, 2012, the Family Court found that the mother neglected the child Jaelin L. based, in part, on the mother's refusal to consent to certain medical treatment for Jaelin with respect to his mental health issues. The Family Court also found that the mother derivatively neglected the child Ashton B. on the ground that Ashton was in the mother's care and that the manner in which the mother acted with regard to Jaelin's mental health issues showed a lack of parenting judgment.
To establish neglect based upon a parent's failure to provide adequate medical care, a petitioner must prove, by a preponderance of the evidence, that the child's physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care, though financially able to do so (see Family Ct. Act §§ 1012 [f][i][A], 1046 ; Matter of Ariel P. [Lisa W.], 102 A.D.3d 795, 795, 957 N.Y.S.2d 736 ; Matter of Alanie H., 83 A.D.3d 1066, 1067, 922 N.Y.S.2d 166 ). A parent's unwillingness to follow a recommended course of psychiatric treatment which results in the impairment of a child's emotional health may support a finding of neglect (see Matter of Ariel P. [Lisa W.], 102 A.D.3d at 795, 957 N.Y.S.2d 736 ; Matter of Terrence P., 38 A.D.3d 254, 831 N.Y.S.2d 384 ; Matter of Felicia D., 263 A.D.2d 399, 693 N.Y.S.2d 41 ). Even so, in the context of a petition alleging medical neglect, “the court's role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the ‘right’ or ‘wrong’ decision” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840, quoting Matter of Hofbauer, 47 N.Y.2d 648, 656, 419 N.Y.S.2d 936, 393 N.E.2d 1009 ; see Matter of Ariel P. [Lisa W.], 102 A.D.3d at 795–796, 957 N.Y.S.2d 736 ). Rather, in deciding whether a parent has been neglectful by depriving his or her child of adequate medical care, the court must determine whether the parent has provided an acceptable course of treatment in light of all of the surrounding circumstances (see Matter of Hofbauer, 47 N.Y.2d at 656, 419 N.Y.S.2d 936, 393 N.E.2d 1009 ).
Here, the mother's refusal to consent to the course of medical treatment proposed by mental health professionals would not, by itself, have justified a finding of medical neglect. Nonetheless, the credible evidence established that the mother did not merely disagree with the course of medical treatment proposed for Jaelin, but also refused to cooperate in formulating any appropriate treatment for Jaelin. The credible evidence established that the mother opposed not only invasive testing, but noninvasive testing as well, and she discounted or denied the seriousness of the child's symptoms, which included hallucinations and a desire to harm himself. The mother's conduct put the child in imminent danger of impairment (see Matter of Shawndel M., 33 A.D.3d 1006, 1006–1007, 824 N.Y.S.2d 335 ; cf. Matter of Ariel P. [Lisa W.], 102 A.D.3d at 795–796, 957 N.Y.S.2d 736 ; Matter of Terrence P., 38 A.D.3d 254, 256–257, 831 N.Y.S.2d 384 ). Under these circumstances, the Family Court's determination that the mother neglected Jaelin was supported by a preponderance of the evidence (see Matter of Shawndel M., 33 A.D.3d at 1006–1007, 824 N.Y.S.2d 335 ; cf. Matter of Amir L. [Chantel B.], 104 A.D.3d 505, 506, 961 N.Y.S.2d 386 ). Moreover, the mother's medical neglect as to Jaelin supported a determination of derivative neglect as to Ashton (see Matter of Jaylynn R. [Monica D.], 107 A.D.3d 809, 810, 967 N.Y.S.2d 129 ; Matter of Amoreih S. [Nicole S.], 84 A.D.3d 1246, 1247–1248, 923 N.Y.S.2d 359 ; Matter of Iyanah D., 65 A.D.3d 927, 928, 885 N.Y.S.2d 79 ).
The Family Court did not improvidently exercise its discretion in granting the father's petition for legal and physical custody of Ashton. The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Land–Wheatley v. Land–Wheatley, 108 A.D.3d 674, 674, 969 N.Y.S.2d 518 ). Inasmuch as custody determinations depend in large part on the Family Court's assessment of the character and credibility of the parties and witnesses, that court's findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Land–Wheatley v. Land–Wheatley, 108 A.D.3d at 674, 969 N.Y.S.2d 518 ; Matter of Garcia v. Becerra, 68 A.D.3d 864, 865, 890 N.Y.S.2d 625 ; Matter of Bonilla v. Amaya, 58 A.D.3d 728, 729, 872 N.Y.S.2d 465 ). Here, the Family Court's determination that Ashton's best interests would be served by an award of sole legal and physical custody to the father has a sound and substantial basis in the record (see Matter of Land–Wheatley v. Land–Wheatley, 108 A.D.3d at 674, 969 N.Y.S.2d 518 ; Matter of Quinones v. Gonzalez, 79 A.D.3d 893, 894, 912 N.Y.S.2d 432 ). The mother's contentions with regard to an interim order of custody dated March 29, 2012, are academic in light of the order of disposition dated December 5, 2013, granting the father's petition for a final order of custody.
The mother's remaining contention is without merit.