Opinion
12-23-2016
In the Matter of DANARYEE B. Erie County Department of Social Services, Petitioner–Respondent; Erica T., Respondent–Appellant.
Evelyne A. O'Sullivan, East Amherst, for Respondent–Appellant. Nicholas G. Locicero, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Child, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
Evelyne A. O'Sullivan, East Amherst, for Respondent–Appellant.
Nicholas G. Locicero, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Child, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order finding that she neglected the subject child. Contrary to the mother's contention, petitioner established by a preponderance of the evidence that the physical, mental, or emotional condition of the child had been or is in imminent danger of becoming impaired as a result of the mother's failure to exercise a minimum degree of care (see Family Ct. Act §§ 1012[f][i] ; 1046[b][i]; see generally Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). Specifically, petitioner presented evidence establishing that the child was in imminent danger because she was exposed to unsanitary and deplorable living conditions, including floors covered in animal feces and ankle-deep piles of garbage (see Matter of Josee Louise L.H. [DeCarla L.], 121 A.D.3d 492, 492–493, 994 N.Y.S.2d 113, lv. denied 24 N.Y.3d 913, 2015 WL 175263 ; Matter of Holly B. [Scott B.], 117 A.D.3d 1592, 1592–1593, 985 N.Y.S.2d 818 ; Matter of Raven B. [Melissa K.N.], 115 A.D.3d 1276, 1280–1281, 983 N.Y.S.2d 155 ). Further, the credible evidence established that the mother's residence did not contain a bed or diapers for the child (see Matter of China C. [Alexis C.], 116 A.D.3d 953, 954, 985 N.Y.S.2d 104, lv. dismissed 23 N.Y.3d 1047, 992 N.Y.S.2d 782, 16 N.E.3d 1261 ; Matter of Commissioner of Social Servs. v. Anne F., 225 A.D.2d 620, 620, 639 N.Y.S.2d 449 ).
Contrary to the mother's further contention, any error in receiving petitioner's exhibits in evidence is harmless "because the record otherwise contains ample admissible evidence to support [Family Court's] determination" that the mother neglected the child (Matter of Matthews v. Matthews, 72 A.D.3d 1631, 1632, 899 N.Y.S.2d 496, lv. denied 15 N.Y.3d 704, 2010 WL 3397040 ; see Matter of Delehia J. [Tameka J.], 93 A.D.3d 668, 670, 939 N.Y.S.2d 570 ). Finally, the mother's contention that the court erred in striking the testimony of one of her witnesses is not preserved for our review (see generally CPLR 5501[a][3] ; Matter of Crystal A., 11 A.D.3d 897, 898, 782 N.Y.S.2d 474 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.