Opinion
2014-10-14
In re JOSEE LOUISE L.H., A Child Under the Age of Eighteen Years, etc., DeCarla L., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.
FRIEDMAN, J.P., MOSKOWITZ, FEINMAN, GISCHE, KAPNICK, JJ.
Order of fact-finding and disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about December 3, 2013, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondentmother neglected the subject child, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about May 30, 2013, which denied respondent's application pursuant to Family Court Act § 1028 for the return of the child, unanimously dismissed, without costs, as moot.
A preponderance of the evidence supports the court's finding that the then three-year-old child's health was at imminent risk of impairment as a result of being exposed to unsanitary and deplorable living conditions, including the odor of dead vermin, the presence of dog feces on the floor, bedbugs in the beds and sofa, and otherwise filthy conditions in the apartment where she was staying with respondent (Family Court Act §§ 1046[b]; 1012 [f][i]; Matter of Isaac J. [Joyce J.], 75 A.D.3d 506, 904 N.Y.S.2d 755 [2nd Dept.2010] ). These conditions did not consist merely of clutter and odors that were not attributable to respondent ( see Matter of Clydeane C. [Annetta C.], 74 A.D.3d 486, 902 N.Y.S.2d 80 [1st Dept.2010] ).
Since respondent never moved to dismiss the petition against her pursuant to Family Court Act § 1051(c), the issue of whether the petition should have been dismissed is not preserved for our review ( see Matter of Cherish C. [Shanikwa C.], 102 A.D.3d 597, 959 N.Y.S.2d 51 [1st Dept.2013] ). In any event, the court's continued aid was required ( see Matter of Naomi S. [Hadar S.], 87 A.D.3d 936, 933 N.Y.S.2d 1 [1st Dept.2011], lv. denied18 N.Y.3d 804, 2012 WL 118018 [2012] ). Although respondent contends that she obtained safe, clean living quarters after moving out of the apartment, she refused to provide the address of her new home to the court, the agency or her counsel so that the new home could be assessed, and it was not known whether the dangers posed to the child had passed.