Opinion
2012-01-12
In the Matter of ALEXIS AA. and Others, Alleged to be Neglected Children.Clinton County Department of Social Services, Respondent;John AA., Appellant.
Marcel J. Lajoy, Albany, for appellant. Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, for respondent.
Marcel J. Lajoy, Albany, for appellant. Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, for respondent. Omshanti Parnes, Plattsburgh, attorney for the children.
Before: PETERS, J.P., ROSE, KAVANAGH, McCARTHY and GARRY, JJ.
KAVANAGH, J.
Appeals from three orders of the Family Court of Clinton County (Lawliss, J.), entered February 22, 2011 and March 10, 2011, which partially granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate respondent's children to be neglected.
Respondent and Emily BB. (hereinafter the mother) are the married parents of three children—Gabe AA., Noah AA. and Alexis AA. (born in 2008, 2009 and 2010, respectively). In December 2010, petitioner commenced this proceeding alleging that the children were neglected by respondent. Following a fact-finding hearing, Family Court concluded that respondent had neglected Gabe and Noah, but dismissed the petition as to Alexis. Following a dispositional hearing, the court removed Gabe and Noah, placed them with petitioner, and issued an order of protection prohibiting respondent from having any contact with them except during authorized periods. Respondent now appeals.
A separate and similar proceeding was commenced against the mother, and resulted in a finding of neglect against her.
Any issues respondent raised regarding the order of protection have been abandoned by his failure to address them in his brief ( see Matter of Casolo v. Casolo, 50 A.D.3d 1196, 1198 n., 855 N.Y.S.2d 292 [2008] ).
To establish neglect, petitioner must prove by a preponderance of the evidence ( see Family Ct. Act § 1046[b][1] ) that the children's “ ‘physical, mental or emotional condition [have] been impaired or [are] in imminent danger of becoming impaired as a result of the failure of [respondent] to exercise a minimum degree of care’ with regard to food, clothing, shelter, education and medical care or proper guardianship or supervision” ( Matter of Alyson J. [Laurie J.], 88 A.D.3d 1201, 1202, 931 N.Y.S.2d 741 [2011], quoting Family Ct. Act § 1012[f][i]; see Matter of Joseph RR. [Lynn TT.], 86 A.D.3d 723, 724, 927 N.Y.S.2d 428 [2011] ). Here, caseworkers testified to numerous instances during which Gabe and Noah sustained significant injuries because respondent failed to properly supervise them while they were in his care. In that regard, evidence was presented that Noah was left unattended on a back porch staircase and injured his head when he fell to the concrete slab below. The same child was left alone in a room and burned his arm when he came into contact with an exposed baseboard heating unit. Noah was also found to have numerous bites on his body—some severe—all of which had been inflicted by his brother when the two children were not properly supervised by respondent. Respondent also permitted both children to eat food that was on the floor of the premises and took no steps to prevent Gabe from hitting his head on the sidewalk and licking puddles while outside on the street. These incidents, all of which occurred at a time when respondent was charged with the supervision of these children and responsible for their care, provide ample support for Family Court's determination that he neglected both children ( see Matter of Samuel DD. [Margaret DD.], 81 A.D.3d 1120, 1124, 916 N.Y.S.2d 366 [2011]; Matter of Kaleb U. [Heather V.-Ryan U.], 77 A.D.3d 1097, 1098–1099, 908 N.Y.S.2d 773 [2010] ).
As for Family Court's decision to place Gabe and Noah with petitioner, we note that, in addition to the evidence establishing respondent's neglect of these children, the family home—despite petitioner's ongoing efforts to provide services to respondent and the mother—was often littered with garbage and debris and was so unsanitary that it remained an unsuitable environment for young children ( see Matter of Keaghn Y. [Heaven Z.], 84 A.D.3d 1478, 1478–1479, 921 N.Y.S.2d 737 [2011]; Matter of Kaleb U. [Heather V.-Ryan U.], 77 A.D.3d at 1099–1100, 908 N.Y.S.2d 773). While respondent and the mother did attempt, albeit somewhat belatedly, to address these conditions and remedy them, we agree with Family Court that the record, when viewed in its entirety, establishes that the children's best interests required that they be placed in petitioner's custody ( see Matter of Elijah Q., 36 A.D.3d 974, 975–976, 828 N.Y.S.2d 607 [2007], lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007] ).
We reject the contention of the attorney for the children that the appeal from the dispositional order is moot ( see Matter of Brandon DD. [Jessica EE.], 74 A.D.3d 1435, 1437 n. 2, 903 N.Y.S.2d 195 [2010] ).
ORDERED that the orders are affirmed, without costs.