Opinion
No. 862 CAF 22-01595
11-17-2023
IN THE MATTER OF BARRY G., JR. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; BARRY G., RESPONDENT-APPELLANT.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT. GABRIELLE GANNON, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JENNIFER M. MCCANN OF COUNSEL), ATTORNEY FOR THE CHILD.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT.
GABRIELLE GANNON, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JENNIFER M. MCCANN OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND DELCONTE, JJ.
Appeal from an order of the Family Court, Erie County (Kelly A. Brinkworth, J.), dated August 12, 2022, in a proceeding pursuant to Family Court Act article 10. The order, inter alia, found that respondent had neglected the subject child.
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 he neglected the subject child. We affirm.
Contrary to the father's contention, we conclude that there is a sound and substantial basis in the record to support Family Court's determination that the father neglected the child (see generally Matter of Sean P. [Brandy P.], 156 A.D.3d 1339, 1339-1340 [4th Dept 2017], lv denied 31 N.Y.3d 903 [2018]). A neglected child is defined, in relevant part, as a child less than 18 years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [the child's] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof . . . or by any other acts of a similarly serious nature requiring the aid of the court" (Family Ct Act § 1012 [f] [i] [B]). "The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent's failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances" (Matter of Afton C. [James C.], 17 N.Y.3d 1, 9 [2011] [internal quotation marks omitted]; see Matter of Gina R. [Christina R.], 211 A.D.3d 1483, 1484 [4th Dept 2022]).
Here, petitioner met its burden by establishing by a preponderance of the evidence that the father left the child unsupervised at a shelter and made no attempt to contact the shelter or the authorities about the well-being of the child or his own whereabouts for three days, thereby placing the child in imminent risk of harm (see generally Matter of Leo A.G.-H.B. [Natalie G.], 181 A.D.3d 599, 600-601 [2d Dept 2020]; Matter of Ashley B. [Lavern B.], 137 A.D.3d 1696, 1697 [4th Dept 2016]).