Opinion
983 CAF 22-00797
12-22-2023
In the MATTER OF KAMERON R. Oswego County Department of Social Services, Petitioner-Respondent; v. Alexis R., Respondent-Appellant. (Appeal No. 1.)
ROBERT J. GALLAMORE, ST. GEORGE, UTAH, FOR RESPONDENT-APPELLANT. AMY L. HALLENBECK, GLOVERSVILLE, FOR PETITIONER-RESPONDENT. SCOTT OTIS, WATERTOWN, ATTORNEY FOR THE CHILD.
ROBERT J. GALLAMORE, ST. GEORGE, UTAH, FOR RESPONDENT-APPELLANT.
AMY L. HALLENBECK, GLOVERSVILLE, FOR PETITIONER-RESPONDENT.
SCOTT OTIS, WATERTOWN, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, GREENWOOD, AND NOWAK, 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 mother appeals in appeal No. 1 from an order of disposition that, inter alia, determined that she neglected the subject child. In appeal No. 2, the mother appeals from an order of protection issued in favor of the subject child. As an initial matter, we dismiss the appeal from the order in appeal No. 2 as moot inasmuch as the challenged order of protection expired by its terms on March 10, 2023 (see Matter of Romeo M. [Nicole R.] , 94 A.D.3d 1464, 1465, 942 N.Y.S.2d 827 [4th Dept. 2012], lv denied 19 N.Y.3d 810, 2012 WL 3743680 [2012] ; Matter of Nicholas J.R. [Jamie L.R.] , 83 A.D.3d 1490, 1491, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ; Matter of Leah S. , 61 A.D.3d 1402, 1402, 877 N.Y.S.2d 711 [4th Dept. 2009] ). We further conclude that the exception to the mootness doctrine does not apply (see generally Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).
Contrary to the mother's contention in appeal No. 1, we conclude that Family Court properly admitted in evidence her medical records and the medical records of the subject child (see Matter of Faith K. [Cindy R.] , 194 A.D.3d 1402, 1403, 147 N.Y.S.3d 839 [4th Dept. 2021] ; Matter of Zackery S. [Stephanie S.] , 170 A.D.3d 1594, 1594-1595, 96 N.Y.S.3d 438 [4th Dept. 2019] ; see generally Family Ct Act § 1046 [a] [iv] ). Even assuming, arguendo, that the court erred in admitting certain parts of those records, we conclude that any such error is harmless because, "even if those records are excluded from consideration, the finding of neglect is nonetheless supported by a preponderance of the credible evidence" ( Matter of Lyndon S. [Hillary S.] , 163 A.D.3d 1432, 1433, 80 N.Y.S.3d 821 [4th Dept. 2018] ; see Matter of Brooklyn S. [Stafania Q.—Devin S.] , 150 A.D.3d 1698, 1700, 52 N.Y.S.3d 607 [4th Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051983 [2017] ).
We further reject the mother's contention that the court erred in determining that petitioner established by a preponderance of the evidence that she neglected the child. Pursuant to Family Court Act § 1046 (a) (iii), "proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program." That statutory presumption " ‘operates to eliminate a requirement of specific parental conduct vis-à-vis the child and neither actual impairment nor specific risk of impairment need be established’ " ( Matter of Paolo W. , 56 A.D.3d 966, 967, 867 N.Y.S.2d 753 [3d Dept. 2008], lv dismissed 12 N.Y.3d 747, 876 N.Y.S.2d 698, 904 N.E.2d 834 [2009] ; see Matter of Samaj B. [Towanda H.-B.—Wade B.] , 98 A.D.3d 1312, 1313, 951 N.Y.S.2d 308 [4th Dept. 2012] ).
Here, petitioner established that the mother admitted repeated drug use while pregnant. Indeed, petitioner established that, at the time of the child's birth, both the mother and the child tested positive for multiple drugs. Moreover, the evidence at the fact-finding hearing established that, following the child's birth, the mother relapsed into drug misuse several times during the relevant time frame and again tested positive for multiple drugs. Thus, the court's determination that petitioner established neglect by a preponderance of the evidence is supported by the requisite sound and substantial basis in the record (see Matter of Noah C. [Greg C.] , 192 A.D.3d 1676, 1677-1678, 145 N.Y.S.3d 266 [4th Dept. 2021] ; Matter of Jack S. [Leah S.] , 176 A.D.3d 1643, 1644-1645, 107 N.Y.S.3d 910 [4th Dept. 2019] ).
Additionally, we conclude, contrary to the mother's contention, that the court properly determined that petitioner met its burden of establishing by a preponderance of the evidence that the mother neglected the child on the basis that she "knew or should have known of circumstances requiring action to avoid harm or the risk of harm to the child and failed to act accordingly" ( Matter of Brian P. [April C.] , 89 A.D.3d 1530, 1530, 933 N.Y.S.2d 792 [4th Dept. 2011] ; see generally Family Ct Act §§ 1012 [f] [i] [b] ; 1046 [a] [ii]). Specifically, the record supports the court's determination that, while the child was in the mother's care, at the age of approximately eight weeks, she dropped him and he landed on his head, causing him to sustain a skull fracture and hematoma. The mother did not tell anyone what had happened or take the child to the hospital until the next day when the child was feverish and was suffering seizures. In short, petitioner's evidence established that the child sustained injuries that "would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of [the] child" ( Family Ct Act § 1046 [a] [ii] ; see Matter of Grayson R.V. [Jessica D.] , 200 A.D.3d 1646, 1648, 160 N.Y.S.3d 514 [4th Dept. 2021], lv denied 38 N.Y.3d 909, 2022 WL 2126520, 2022 WL 2126963, 2022 WL 2127772 [2022]; see generally Matter of Philip M. , 82 N.Y.2d 238, 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ). Based on the child's age and size, the mother should have known that dropping the child with the result that he landed on his head "required action in order to avoid actual or potential impairment of the child" ( Matter of Nathanael E. [Melodi F.] , 160 A.D.3d 1075, 1079, 74 N.Y.S.3d 127 [3d Dept. 2018] [internal quotation marks omitted]).
We also note that the court's credibility determinations are entitled to great deference, and we will not disturb those determinations, where, as here, they are supported by the record (see Matter of Jack S. [Franklin O.S.] , 173 A.D.3d 1842, 1843-1844, 105 N.Y.S.3d 667 [4th Dept. 2019] ; Matter of Jeromy J. [Latanya J.] , 122 A.D.3d 1398, 1398-1399, 997 N.Y.S.2d 567 [4th Dept. 2014], lv denied 25 N.Y.3d 901, 2015 WL 1422896 [2015] ). Additionally, the court properly drew " ‘the strongest possible negative inference’ against [the mother] after [she] failed to testify at the fact-finding hearing" ( Matter of Kennedie M. [Douglas M.] , 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278 [4th Dept. 2011], lv denied 18 N.Y.3d 808, 2012 WL 539274 [2012] ; see Noah C. , 192 A.D.3d at 1678, 145 N.Y.S.3d 266 ; Matter of Brittany W. [Patrick W] , 103 A.D.3d 1217, 1218, 960 N.Y.S.2d 668 [4th Dept. 2013] ).
Finally, we have considered the mother's remaining contentions and conclude that none warrants reversal or modification of the order in appeal No. 1.