Opinion
11-10-2016
In the Matter of MARY R.F., Mirabella H. and Miraj M. Cayuga County Department of Health and Human Services, Petitioner–Respondent; Angela I., Respondent–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Respondent–Appellant. David P. Elkovitch, Auburn, for Petitioner–Respondent. Robert A. Dinieri, Attorney for the Children, Clyde.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Respondent–Appellant.
David P. Elkovitch, Auburn, for Petitioner–Respondent.
Robert A. Dinieri, Attorney for the Children, Clyde.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM:In this Family Court Act article 10 proceeding, respondent mother appeals from an order finding that she neglected her children. The mother contends that Family Court erred in denying her motion to dismiss the petition at the close of petitioner's proof on the ground that petitioner failed to prove by a preponderance of the evidence that the children were neglected. We reject that contention. “While the burden of proving abuse or neglect always rests with petitioner, upon a motion to Family Court to dismiss a Family Court Act article 10 petition at the close of petitioner's case, ‘the proper inquiry [is] whether petitioner [has] made out a prima facie case, thereby shifting the burden to respondent[ ] to rebut the evidence of parental culpability’ ” (Matter of Camara R., 263 A.D.2d 710, 712, 693 N.Y.S.2d 681 ). We conclude that petitioner met its initial burden by establishing that the mother's home was maintained in an unsafe and unsanitary condition (see Matter
of Nathifa B., 294 A.D.2d 432, 433, 742 N.Y.S.2d 646, lv. denied 98 N.Y.2d 616, 752 N.Y.S.2d 2, 781 N.E.2d 914 ), and that the mother failed to follow up with the primary care physician of one of the children as instructed by hospital emergency department providers after they examined the child for an alleged incident of sexual abuse (see Matter of Andrei S., 47 A.D.3d 721, 721, 848 N.Y.S.2d 887 ; Matter of Notorious YY., 33 A.D.3d 1097, 1098, 822 N.Y.S.2d 670 ). Upon our review of the entire record, we further conclude that there is a sound and substantial basis for the court's ultimate determination that the children were neglected, i.e., in that they were “in imminent danger of impairment as a result of the failure of [the mother] to exercise a minimum degree of care” in providing proper supervision or guardianship (§ 1012[f] [i][B] ; see Matter of Jeromy J. [Latanya J.], 122 A.D.3d 1398, 1398–1399, 997 N.Y.S.2d 567, lv. denied 25 N.Y.3d 901, 2015 WL 1422896 ).
The mother's contention that the Attorney for the Children had a conflict of interest that adversely impacted her representation of the children is raised for the first time on appeal and thus is unpreserved for our review (see Matter of Wood v. Hargrave, 292 A.D.2d 795, 796, 739 N.Y.S.2d 331, lv. denied 98 N.Y.2d 608, 746 N.Y.S.2d 692, 774 N.E.2d 757 ; see also Matter of Carrieanne G., 15 A.D.3d 850, 850, 789 N.Y.S.2d 371, lv. denied 4 N.Y.3d 709, 797 N.Y.S.2d 816, 830 N.E.2d 1145 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.