Opinion
557 CAF 21-01452
06-10-2022
In the MATTER OF MCKINLEY H.-W. Genesee County Department of Social Services, Petitioner-Respondent; v. Daniel W., Respondent-Appellant. (Appeal No. 2.)
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT. TINA M. KASPEREK, BATAVIA, FOR PETITIONER-RESPONDENT. MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT.
TINA M. KASPEREK, BATAVIA, FOR PETITIONER-RESPONDENT.
MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CENTRA, LINDLEY, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal insofar as it concerns the disposition is unanimously dismissed and the order is modified on the law by vacating the finding that respondent neglected the child by failing to obtain medical care and treatment for the child, and as modified the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent father appeals from an order of fact-finding determining, following a hearing, that he neglected the subject child (see Family Ct Act § 1012 [f] [i] [A], [B] ) and, in appeal No. 2, the father appeals from a subsequent order of fact-finding and disposition. As an initial matter, the father's right of direct appeal from the order of fact-finding in appeal No. 1 terminated with the entry of the order of disposition in appeal No. 2, and we therefore dismiss appeal No. 1 (see Matter of Juliette R. [Jordan R.T.] [Appeal No. 2], 203 A.D.3d 1678, 1678, 162 N.Y.S.3d 815 [4th Dept. 2022] ; Matter of Ariana F.F. [Robert E.F.] , 202 A.D.3d 1440, 1441, 161 N.Y.S.3d 661 [4th Dept. 2022] ). In addition, we dismiss the appeal from the order in appeal No. 2 insofar as it concerns the disposition inasmuch as that part of the order was entered upon the father's consent (see Matter of Noah C. [Greg C.] , 192 A.D.3d 1676, 1676, 145 N.Y.S.3d 266 [4th Dept. 2021] ).
Contrary to the father's contention in appeal No. 2, we conclude that petitioner established by a preponderance of the evidence that the father neglected the child. It is well settled that "a party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i] ), first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Nicholson v. Scoppetta , 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; see § 1012 [f] [i] ; Matter of Chance C. [Jennifer S.] , 165 A.D.3d 1593, 1594, 85 N.Y.S.3d 310 [4th Dept. 2018] ). Here, petitioner established by a preponderance of the evidence that the father neglected the child when he cut the bottom of the child's toe with a sword. Contrary to the father's contention, the child's out-of-court statement was adequately corroborated by, inter alia, testimony from the child's mother and petitioner's caseworker who observed the injury to the child (see Matter of Terazay S. [Yazaret T.] , 180 A.D.3d 487, 487-488, 115 N.Y.S.3d 884 [1st Dept. 2020] ; Matter of Grace M. [Leighton M.] , 180 A.D.3d 912, 914, 119 N.Y.S.3d 511 [2d Dept. 2020] ; Matter of Samuel W. [Luemay F.] , 160 A.D.3d 755, 756, 74 N.Y.S.3d 171 [2d Dept. 2018] ), the testimony of the mother that the child and the father were in a bedroom together just minutes before the child reported the injury, and the mother's testimony that the father kept a sword in a closet in that bedroom (see generally Matter of Nicholas J.R. [Jamie L.R.] , 83 A.D.3d 1490, 1490, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ).
We agree with the father, however, that petitioner failed to establish by a preponderance of the evidence that the father neglected the child by failing to obtain medical care and treatment for the child after he was cut, and we therefore modify the order by vacating that finding (see generally Noah C. , 192 A.D.3d at 1678, 145 N.Y.S.3d 266 ). The mother testified that she and the father tended to the child's injury by washing the area with a washcloth, putting ointment on the cut, and bandaging the area. Petitioner's caseworker testified that she instructed the mother two days after the incident to have the child seen by a doctor, which she did, and the mother testified that the doctor treated the injury the same way the parents had, i.e., by cleaning it, placing ointment on it, and bandaging it. There was no testimony that the failure to seek immediate medical care impaired or threatened to impair the child's health (see Matter of Ashlynn R. [Maria R.] , 189 A.D.3d 647, 648, 136 N.Y.S.3d 303 [1st Dept. 2020] ; Matter of Vallery P. [Jondalla P.] , 106 A.D.3d 575, 575, 967 N.Y.S.2d 13 [1st Dept. 2013] ; Matter of Miranda O. , 294 A.D.2d 940, 941, 741 N.Y.S.2d 817 [4th Dept. 2002] ; see generally Matter of Hofbauer , 47 N.Y.2d 648, 656, 419 N.Y.S.2d 936, 393 N.E.2d 1009 [1979] ).
Contrary to the father's further contention, petitioner established by a preponderance of the evidence that the child's mental or emotional condition was impaired or was in imminent danger of becoming impaired by his exposure to domestic violence (see Matter of Trinity B.-S. [William R.N.] , 198 A.D.3d 1331, 1332, 152 N.Y.S.3d 372 [4th Dept. 2021], lv denied 37 N.Y.3d 919, 2022 WL 402273 [2022] ; Matter of Angelia S. [Jesus S.] , 181 A.D.3d 680, 681, 117 N.Y.S.3d 883 [2d Dept. 2020] ; see generally Nicholson , 3 N.Y.3d at 371, 787 N.Y.S.2d 196, 820 N.E.2d 840 ).
We have considered the father's remaining contention and conclude that it is without merit.