Opinion
500 CAF 19-01289
06-17-2021
In the MATTER OF ADAM M. Niagara County Department of Social Services, Petitioner-Respondent; v. Susan M., Respondent-Appellant.(Appeal No. 1.)
ELIZABETH J. CIAMBRONE, BUFFALO, FOR RESPONDENT-APPELLANT. DAVID J. HAYLETT, JR., LOCKPORT, FOR PETITIONER-RESPONDENT. JASON J. CAFARELLA, NIAGARA FALLS, ATTORNEY FOR THE CHILD.
ELIZABETH J. CIAMBRONE, BUFFALO, FOR RESPONDENT-APPELLANT.
DAVID J. HAYLETT, JR., LOCKPORT, FOR PETITIONER-RESPONDENT.
JASON J. CAFARELLA, NIAGARA FALLS, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act articles 10 and 6, respondent mother appeals in appeal No. 1 from an order that, inter alia, adjudged the subject child to be neglected. In appeal No. 2, respondent mother appeals from an order that, inter alia, placed the subject child in the custody of the petitioners in appeal No. 2, his maternal aunt and uncle (petitioners). We reject the mother's contention in appeal No. 1 that Family Court erred in determining that the petitioner in appeal No. 1, Niagara County Department of Social Services (DSS), established, by a preponderance of the evidence, that she neglected the child (see Family Ct Act §§ 1012 [f] [i] [B] ; 1046 [b] [i]; see generally Matter of Kaylee D. [Kimberly D.] , 154 A.D.3d 1343, 1345-1346, 61 N.Y.S.3d 783 [4th Dept. 2017] ). Contrary to the mother's contention, the evidence at the fact-finding hearing established 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 a consequence of the failure of the [mother] 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] [B] ; 1046 [b] [i]; see generally Matter of Nassau County Dept. of Social Servs. v. Denise J. , 87 N.Y.2d 73, 78-79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ).
Here, DSS established that the mother was not properly feeding the child and that there was no refrigerator or stove in the mother's apartment (see Matter of Joshua Hezekiah B. [Edgar B.] , 77 A.D.3d 441, 442, 908 N.Y.S.2d 675 [1st Dept. 2010], lv denied 15 N.Y.3d 716, 2010 WL 5157321 [2010] ; Matter of Terry S. , 55 A.D.2d 689, 689, 389 N.Y.S.2d 55 [3d Dept. 1976] ; see generally Matter of Carpenter v. Puglese , 94 A.D.3d 1367, 1369, 943 N.Y.S.2d 252 [3d Dept. 2012] ). DSS also established that the mother's mental condition impaired her ability to care for the child (see Matter of Hannah T.R. [Soya R.] , 179 A.D.3d 700, 701-702, 116 N.Y.S.3d 320 [2d Dept. 2020] ; Matter of Thomas B. [Calla B.] , 139 A.D.3d 1402, 1403-1404, 31 N.Y.S.3d 381 [4th Dept. 2016] ), and the mother had missed a medical appointment for the child, and the child's immunizations were not up to date (see Matter of Notorious YY. , 33 A.D.3d 1097, 1098, 822 N.Y.S.2d 670 [3d Dept. 2006] ). DSS further established that, despite the availability of child care assistance from DSS, the mother's failure to comply with a work requirement resulted in a reduction to her public assistance benefits, upon which she relied for, inter alia, food, shelter and healthcare for herself and the child (see generally Matter of Jaheem M. [Cymon M.] , 174 A.D.3d 610, 611, 107 N.Y.S.3d 34 [2d Dept. 2019] ).
We also reject the contention of the mother in appeal No. 2 that the court erred in determining that it was in the best interests of the child for custody to be awarded to petitioners. Initially, we conclude that the court's determination of neglect in the Family Court Act article 10 proceeding at issue in appeal No. 1 provided the requisite threshold showing that extraordinary circumstances existed to warrant an inquiry into whether an award of custody to a nonparent is in the child's best interests (see Matter of Emma D. [Kelly V.(D.)] , 180 A.D.3d 1331, 1332-1333, 117 N.Y.S.3d 412 [4th Dept. 2020], lv denied 35 N.Y.3d 907, 2020 WL 3422294 [2020] ; Matter of Donald EE. v. Cheyenne EE. , 177 A.D.3d 1112, 1114-1115, 115 N.Y.S.3d 123 [3d Dept. 2019], lv denied 35 N.Y.3d 903, 2020 WL 2204079 [2020] ; see generally Matter of Bennett v. Jeffreys , 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ).
We further conclude in appeal No. 2 that the court's determination that it is in the child's best interests to be in the custody of petitioners has a sound and substantial basis in the record (see generally Matter of Stent v. Schwartz , 133 A.D.3d 1302, 1304, 20 N.Y.S.3d 784 [4th Dept. 2015], lv denied 27 N.Y.3d 902, 2016 WL 1203428 [2016] ). The evidence established that the child, who turned two during the custody hearing, was removed from the mother and placed in foster care when he was nine months old. At the time of the hearing, the child had been living with petitioners for approximately four months and was doing very well (see Matter of William AA. , 24 A.D.3d 1125, 1127-1128, 807 N.Y.S.2d 181 [3d Dept. 2005], lv denied 6 N.Y.3d 711, 814 N.Y.S.2d 601, 847 N.E.2d 1173 [2006] ). The mother had no contact with the child since his removal more than one year earlier and had not availed herself of the resources or services offered to her by DSS (see generally Matter of Teresa J. v. Tanya H. , 50 A.D.3d 1599, 1600, 857 N.Y.S.2d 844 [4th Dept. 2008] ). Petitioners ensured that the child was receiving the appropriate medical care, and they were in a better position to provide for the child's emotional, physical, and financial well being (see generally Matter of King v. King , 191 A.D.3d 881, 882, 138 N.Y.S.3d 884 [2d Dept. 2021] ).