Opinion
06-16-2017
In the Matter of JAYLA A., Jalisa A., Javani A., and Malachi K. Erie County Department of Social Services, Petitioner–Respondent; Chelsea K., Respondent, and Isaac C., Respondent–Appellant.
Charles J. Greenberg, Amherst, for Respondent–Appellant. Joseph Jarzembek, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
Charles J. Greenberg, Amherst, for Respondent–Appellant.
Joseph Jarzembek, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:
In these proceedings brought pursuant to Family Court Act article 10, respondent Isaac C., the paramour of the mother of the four subject children, but the father of none of them, appeals from an order of fact-finding determining, inter alia, that he was a "person legally responsible" for the neglect of the children. At the outset, we note that although Family Court subsequently issued a combined order of fact-finding and disposition, and although no appeal has been taken from that order, we have jurisdiction to hear this appeal inasmuch as "[a]n appeal from an intermediate or final order in a case involving abuse or neglect may be taken as of right" (Family Ct. Act § 1112[a] ; see Matter of Christy C. [Roberto C.], 77 A.D.3d 563, 563, 909 N.Y.S.2d 351, lv. denied 16 N.Y.3d 712, 2011 WL 1675288 ; Matter of Krystal F. [Liza R.], 68 A.D.3d 670, 670, 892 N.Y.S.2d 87 ).
Contrary to the contention of respondent, we conclude that the court properly determined that he was a "[p]erson legally responsible" for the care of the children and, as such, was a proper party to the child protective proceeding (Family Ct. Act § 1012[g] ; see Matter of Angel R. [Syheid R.], 136 A.D.3d 1041, 1041, 26 N.Y.S.3d 318, lv. denied 27 N.Y.3d 1045, 33 N.Y.S.3d 869, 53 N.E.3d 747 ; Matter of Allyssa O. [Edward N.], 132 A.D.3d 768, 769, 18 N.Y.S.3d 392 ; see generally Matter of Trenasia J. [Frank J.], 25 N.Y.3d 1001, 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377 ). We reject respondent's further contention that the court erred in determining that he neglected the children. "[A] party seeking to establish neglect must show, 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 or caretaker 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 ; see §§ 1012[f][i] ; 1046[b][i] ). In reviewing the court's determinations, "we must accord great weight and deference to them, ‘including [the court's] drawing of inferences and assessment of credibility,’ and we will not disturb those determinations, where, as here, they are supported by the record" (Matter of Merrick T., 55 A.D.3d 1318, 1319, 866 N.Y.S.2d 839 ; see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401, 963 N.Y.S.2d 895, lv. denied 21 N.Y.3d 862, 2013 WL 4516332 ; Matter of Shaylee R., 13 A.D.3d 1106, 1106, 787 N.Y.S.2d 553 ). We also note that the court was entitled to draw the strongest possible inference against respondent as a result of his failure to testify at the fact-finding hearing (see Matter of Burke H. [Richard H.], 117 A.D.3d 1455, 1455–1456, 985 N.Y.S.2d 367 ; see also Matter of Brian S. [Tanya S.], 141 A.D.3d 1145, 1146, 34 N.Y.S.3d 851 ). We conclude that the evidence adduced at the hearing preponderated in support of the court's finding that the subject children were neglected as a result of the failure of respondent, as a person legally responsible for their care, to exercise a minimum degree of care in supplying the children with adequate food, clothing, shelter, or education, and/or in providing the children with proper supervision or guardianship so as not to unreasonably inflict, allow there to be inflicted, or imminently risk the potential infliction of serious harm upon them (see § 1012[f], [g] ; see also Matter of Mary R.F. [Angela I.], 144 A.D.3d 1493, 1494, 41 N.Y.S.3d 341, lv. denied 28 N.Y.3d 915, 2017 WL 628934 ; Brian S., 141 A.D.3d at 1146, 34 N.Y.S.3d 851 ; Matter of Ashley B. [Lavern B.], 137 A.D.3d 1696, 1697, 28 N.Y.S.3d 196 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.