Opinion
2014-05-9
In the Matter of BURKE H. Erie County Department of Social Services, Petitioner–Respondent; Richard H., Respondent, and Tiffany H., Respondent–Appellant.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered August 24, 2012 in a proceeding pursuant to Family Court Act article 10. The order, insofar as appealed from, determined Burke H. to be a neglected child. Evelyne O'Sullivan, East Amherst, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered August 24, 2012 in a proceeding pursuant to Family Court Act article 10. The order, insofar as appealed from, determined Burke H. to be a neglected child.
Evelyne O'Sullivan, East Amherst, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
MEMORANDUM:
In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order that, insofar as appealed from, adjudged that she neglected the subject child. Contrary to the mother's contention, Family Court's finding of derivative neglect is supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i]; Matter of Brandon T. [Guillaume T.], 114 A.D.3d 950, 950–951, 980 N.Y.S.2d 830). Petitioner established that “the neglect ... of the child's older siblings was so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still existed” (Brandon T., 114 A.D.3d at 950, 980 N.Y.S.2d 830;see Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 804, 925 N.Y.S.2d 531), and that the mother failed to address the problems that led to the neglect findings with respect to her other children ( see Matter of Krystal J., 267 A.D.2d 1097, 1098, 700 N.Y.S.2d 340). To the extent that the mother challenges the testimony of petitioner's psychologist, it is well settled that the court's “determination regarding the credibility of witnesses is entitled to great weight on appeal, and will not be disturbed if supported by the record” (Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890,lv. denied21 N.Y.3d 864, 2013 WL 4711222;see Matter of Merrick T., 55 A.D.3d 1318, 1319, 866 N.Y.S.2d 839). We conclude that the court properly credited the psychologist's report and opinion, which were based upon numerous visits with the mother and an extensive review of documentation.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. SMITH, J.P., PERADOTTO, CARNI, SCONIERS, and VALENTINO, JJ., concur.