Opinion
05-03-2024
In the MATTER OF LANDEN S. and Kamerson S. Yates County Department of Social Services, Petitioner-Respondent; v. April S., Respondent, Timothy S., Respondent-Appellant.
RYAN JAMES MULDOON, AUBURN, FOR RESPONDENT-APPELLANT. RUTH A. CHAFFEE, PENN YAN, FOR PETITIONER-RESPONDENT. TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILD. SHARON ALLEN, KEUKA PARK, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Yates County (Stacey Romeo, A.J.), entered March 2, 2023, in a proceeding pursuant to Family Court Act article 10. The order, inter alia, placed respondent Timothy S. under the supervision of petitioner.
RYAN JAMES MULDOON, AUBURN, FOR RESPONDENT-APPELLANT.
RUTH A. CHAFFEE, PENN YAN, FOR PETITIONER-RESPONDENT.
TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILD.
SHARON ALLEN, KEUKA PARK, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In this proceeding brought pursuant to Family Court Act article 10, respondent father appeals from an order of disposition that, inter alia, placed him under the supervision of petitioner for a period of 12 months following an adjudication that he neglected the subject children. As an initial matter, we dismiss the appeal insofar as it concerns the disposi- tion inasmuch as the father consented thereto (see CPLR 5511; Matter of Noah C. [Greg C.], 192 A.D.3d 1676, 1676, 145 N.Y.S.3d 266 [4th Dept. 2021]; Matter of Kendall N [Angela M.], 188 A.D.3d 1688, 1688, 132 N.Y.S.3d 392 [4th Dept. 2020], lv denied 36 N.Y.3d 908, 2021 WL 1134739 [2021]). The appeal, however, brings up for review the order of fact-finding determining that he neglected the children (see Noah C, 192 A.D.3d at 1676, 145 N.Y.S.3d 266; Matter of Anthony L. [Lisa P.], 144 A.D.3d 1690, 1691, 41 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 581722 [2017]; Matter of Lisa E. [appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994]).
[1, 2] Contrary to the father’s contention, Family Court did not err in determining that petitioner established that the father neglected the children. To establish neglect, petitioner was required to show, by a preponderance of the evidence, " ‘first, that [the] child[ren]’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[ren] is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child[ren] with proper supervision or guardianship’ " (Matter of Jayla A. [Chelsea K.-Isaac C.], 151 A.D.3d 1791, 1792, 54 N.Y.S.3d 819 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653460 [2017], quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]; see Family Ct Act § 1012 [f] [i]). 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 Jeromy J. [Latanya J.], 122 A.D.3d 1398, 1398-1899, 997 N.Y.S.2d 567 [4th Dept. 2014], lv denied 25 N.Y.3d 901, 2015 WL 1422896 [2015] [internal quotation marks omitted]).
Here, the record establishes that the father left the subject children at the mother’s home and in her long-term care, despite the fact that it was in violation of the order of protection that the father had previously sought and obtained. The record further established that the father failed to assist the mother with the children’s mental health issues and multiple absences from school. We therefore conclude that " ‘there is a sound and substantial basis to support [the court’s] finding that the child[ren were] in imminent danger of impairment as a result of [the father’s] failure to exercise a minimum degree of care’ " (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).