Opinion
1184 CAF 16–01308
12-22-2017
In the MATTER OF SEAN P. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. Brandy P., Respondent–Appellant, and Sean P., Respondent.
FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT. LAURA ESTELA CARDONA, ATTORNEY FOR THE CHILD, SYRACUSE.
FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT.
LAURA ESTELA CARDONA, ATTORNEY FOR THE CHILD, SYRACUSE.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:In this proceeding pursuant to article 10 of the Family Court Act, respondent mother appeals from an order in which Family Court determined that she neglected the subject child. In reviewing the propriety of the order, we note that petitioner's burden was to "demonstrate by a preponderance of the evidence ‘first, that [the] 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 ... to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ " ( Matter of Ilona H. [Elton H.], 93 A.D.3d 1165, 1166, 940 N.Y.S.2d 406 [4th Dept. 2012], quoting 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] ). We further note that the court's "findings of fact are accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record" ( Matter of Kaleb U. [Heather V.—Ryan U.], 77 A.D.3d 1097, 1098, 908 N.Y.S.2d 773 [3d Dept. 2010] ; see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401, 963 N.Y.S.2d 895 [4th Dept. 2013], lv denied 21 N.Y.3d 862, 972 N.Y.S.2d 219, 995 N.E.2d 182 [2013] ).We conclude that there is a sound and substantial basis in the record supporting the court's determination that petitioner met its burden of establishing the mother's neglect of the child, i.e., that "the child was in imminent danger of impairment as a result of [the mother's] failure to exercise a minimum degree of care" ( Matter of Paul U., 12 A.D.3d 969, 971, 785 N.Y.S.2d 767 [3d Dept. 2004] ; see Matter of Claudina E.P. [Stephanie M.], 91 A.D.3d 1324, 1324, 937 N.Y.S.2d 655 [4th Dept. 2012] ; see generally Nicholson, 3 N.Y.3d at 368–370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). The evidence supporting the court's determination includes the testimony and notes of petitioner's caseworker, as well as neonatal hospital records, which outline the mother's difficulties in caring for the child during the first four days of his life.
We reject the mother's contention that the finding of neglect was based solely on her mental illness. " ‘While evidence of mental illness, alone, does not support a finding of neglect, such evidence may be part of a neglect determination when the proof further demonstrates that a respondent's condition creates an imminent risk of physical, mental or emotional harm to a child’ " ( Matter of Anthony TT.[Philip TT.], 80 A.D.3d 901, 902, 914 N.Y.S.2d 765 [3d Dept. 2011], lv denied 17 N.Y.3d 704, 929 N.Y.S.2d 95, 952 N.E.2d 1090 [2011] ; see generally Matter of Joseph MM.[Clifford MM.], 91 A.D.3d 1077, 1079, 937 N.Y.S.2d 377 [3d Dept. 2012], lv denied 18 N.Y.3d 809, 944 N.Y.S.2d 480, 967 N.E.2d 705 [2012] ). Petitioner presented testimony and documentary evidence establishing that the mother's mental illness and intellectual disabilities rendered her unable to feed the child properly or to support the child's head, even while under hospital supervision. Thus, there was a sound and substantial basis supporting the court's determination that the child would be harmed if the mother were allowed to control his feeding schedule or to hold the child unsupervised.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.