Opinion
161 CAF 21-00467
03-24-2023
In the MATTER OF XANDRIEA M. Erie County Department of Social Services, Petitioner-Respondent; v. Jamal M., Respondent-Appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NATHALIE T. MARIN OF COUNSEL), ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NATHALIE T. MARIN OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent father appeals from an order of fact-finding and disposition that, inter alia, adjudged that the father neglected the subject child. We affirm.
Contrary to the father's contention, petitioner established that he neglected the child inasmuch as petitioner showed by a preponderance of the evidence that the child's "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and ... that the actual or threatened harm to the child is a consequence of the failure of the [father] to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( 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 § 1046 [b] [i] ). Here, the evidence at the hearing established that the father refused to allow the child to return home after he learned that she was lying to him and instead informed the child and the caseworker for Child Protective Services that the child should go to a shelter. The evidence also established that the father was not willing to cooperate with the caseworker in arranging for the child's appropriate care or eventual return home, thereby placing the child in imminent risk of harm (see Matter of Ashley B. [Lavern B.] , 137 A.D.3d 1696, 1697, 28 N.Y.S.3d 196 [4th Dept. 2016] ; Matter of Chantel ZZ. , 279 A.D.2d 669, 672, 717 N.Y.S.2d 802 [3d Dept. 2001] ). Thus, we conclude that there is a sound and substantial basis in the record supporting Family Court's determination that the father neglected the child (see generally Matter of Gina R. [Christina R.] , 211 A.D.3d 1483, 1484, 180 N.Y.S.3d 745 [4th Dept. 2022] ).