Opinion
2017–08772 2017-08775 Docket No. N-219-17
11-14-2018
In the MATTER OF MAJESTY M. (Anonymous). Orange County Department of Social Services, Petitioner-Respondent; v. Brandy P. (Anonymous), Respondent-Appellant, et al., Respondent.
Salihah R. Denman, Harrison, NY, for respondent-appellant. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Stephanie Bazile of counsel), for petitioner-respondent. Robert M. Rametta, Goshen, NY, attorney for the child.
Salihah R. Denman, Harrison, NY, for respondent-appellant.
Langdon C. Chapman, County Attorney, Goshen, N.Y. (Stephanie Bazile of counsel), for petitioner-respondent.
Robert M. Rametta, Goshen, NY, attorney for the child.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the appeal from so much of the order of fact-finding as found that the mother neglected the subject child is dismissed, without costs or disbursements, as that portion of the order of fact-finding was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the order of disposition is modified, on the law and the facts, by deleting the provision thereof, upon the order of fact-finding, determining that the mother neglected the subject child due to the unsanitary conditions of the home; as so modified, the order of disposition is affirmed, without costs or disbursements, and the order of fact-finding is modified accordingly.
"To establish neglect of a child, a petitioner must 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 Taylor P. [Kevin R.], 163 A.D.3d 678, 678–679, 76 N.Y.S.3d 838, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Family Ct. Act §§ 1012[f][i] ; 1046[b][i] ).
We agree with the Family Court's finding that the petitioner established, by a preponderance of the evidence, that the mother failed to provide the child with proper supervision and guardianship. The evidence demonstrated that she placed the child in near proximity to narcotics and to the very dangerous activity of narcotics trafficking, which posed an imminent danger to the child's physical, mental, and emotional well-being (see Matter of Diamonte O. [Tiffany R.], 116 A.D.3d 866, 867, 983 N.Y.S.2d 441 ; Matter of Sarah A. [Daniel A.], 109 A.D.3d 467, 970 N.Y.S.2d 273 ; Matter of Evan E. [Lasheen E.], 95 A.D.3d 1114, 1114–1115, 943 N.Y.S.2d 782 ; Matter of Paul J., 6 A.D.3d 709, 710, 775 N.Y.S.2d 373 ).
However, we disagree with the Family Court's finding that the petitioner established, by a preponderance of the evidence, that the mother neglected the child by failing to supply the child with adequate shelter based on the unsanitary conditions of the home. While the evidence adduced at the fact-finding hearing demonstrated that the home was in a general state of disarray, it did not establish unsanitary or unsafe conditions such that the child's physical, mental, or emotional condition was impaired or in imminent danger of impairment (see Matter of Iyanah D., 65 A.D.3d 927, 927–928, 885 N.Y.S.2d 79 ; Matter of Erik M., 23 A.D.3d 1056, 1057, 804 N.Y.S.2d 884 ; cf. Matter of Jessica DiB., 6 A.D.3d 533, 775 N.Y.S.2d 69 ).
The mother's contention that the Family Court should have adjourned the neglect proceeding because a related criminal matter was pending against her is without merit (see Matter of Diane H., 5 A.D.3d 770, 771, 773 N.Y.S.2d 613 ; Matter of Derra G., 232 A.D.2d 211, 647 N.Y.S.2d 946 ; Matter of New York City Commr. of Social Servs. v. Elminia E., 134 A.D.2d 501, 521 N.Y.S.2d 283 ; Matter of Germaine B., 86 A.D.2d 847, 848, 447 N.Y.S.2d 448 ).
Finally, although the Family Court should not have admitted into evidence testimony from a caseworker regarding the contents of an anonymous report to the State Central Registry (see Family Ct. Act § 1046[a][v] ), such error was harmless as the finding that the mother neglected the child was supported by admissible evidence (see Matter of Jeremiah J.W. [Tionna W.], 134 A.D.3d 848, 849, 22 N.Y.S.3d 215 ).
The mother's remaining contentions are without merit.
SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.