Opinion
912 CAF 22-00321
12-22-2023
In the MATTER OF AHREN B.-N. Oneida County Department of Social Services, Petitioner-Respondent; v. Gary B.-N., Respondent-Appellant, and Selena B.-N., Respondent.
STEPHANIE R. DIGIORGIO, UTICA, FOR RESPONDENT-APPELLANT. PETER M. RAYHILL, COUNTY ATTORNEY, UTICA (DEANA D. GATTARI OF COUNSEL), FOR PETITIONER-RESPONDENT. WALTER BURKARD, MANLIUS, ATTORNEY FOR THE CHILD.
STEPHANIE R. DIGIORGIO, UTICA, FOR RESPONDENT-APPELLANT.
PETER M. RAYHILL, COUNTY ATTORNEY, UTICA (DEANA D. GATTARI OF COUNSEL), FOR PETITIONER-RESPONDENT.
WALTER BURKARD, MANLIUS, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CURRAN, OGDEN, 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 father appeals from an order of disposition that, inter alia, determined that he neglected the subject child. We affirm.
Contrary to the father's contention, Family Court did not err in determining that petitioner established that the father neglected the child. To establish neglect, petitioner was required to 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’ " ( Matter of Jayla A. [Chelsea K.—Isaac C.] , 151 A.D.3d 1791, 1792, 54 N.Y.S.3d 819 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653460 [2017], quoting 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 § 1012 [f] [i] ). The court's "findings of fact are accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record" ( 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] [internal quotation marks omitted]; see Matter of Arianna M. [Brian M.] , 105 A.D.3d 1401, 1401, 963 N.Y.S.2d 895 [4th Dept. 2013], lv denied 21 N.Y.3d 862, 2013 WL 4516332 [2013] ; Matter of Shaylee R. , 13 A.D.3d 1106, 1106, 787 N.Y.S.2d 553 [4th Dept. 2004] ).
We conclude that a sound and substantial basis in the record supports the court's finding that the child was "in imminent danger of impairment as a result of [the father's] failure to exercise a minimum degree of care" in providing the child with adequate food and medical care ( Jeromy J. , 122 A.D.3d at 1399, 997 N.Y.S.2d 567 [internal quotation marks omitted]; see Matter of Nadjmaah S.B. [Aleshia R.M.] , 140 A.D.3d 1058, 1058-1059, 34 N.Y.S.3d 482 [2d Dept. 2016], lv denied 29 N.Y.3d 901, 2017 WL 1093643 [2017] ). Petitioner's evidence established that the child was severely underweight and exhibited signs of malnutrition and that, despite their awareness of the child's condition, the father and respondent mother did not comply with medical instructions about feeding the child (see Matter of Dustin B. , 24 A.D.3d 1280, 1281, 807 N.Y.S.2d 252 [4th Dept. 2005] ; Matter of Rakim W. , 17 A.D.3d 376, 377-378, 793 N.Y.S.2d 76 [2d Dept. 2005], lv denied 5 N.Y.3d 703, 800 N.Y.S.2d 374, 833 N.E.2d 709 [2005] ). The court credited the testimony of petitioner's witnesses and properly drew " ‘the strongest possible negative inference’ against the father after he 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 Matter of Noah C. [Greg C.] , 192 A.D.3d 1676, 1678, 145 N.Y.S.3d 266 [4th Dept. 2021] ; Matter of Brittany W. [Patrick W.] , 103 A.D.3d 1217, 1218, 960 N.Y.S.2d 668 [4th Dept. 2013] ). We reject the father's contention that the evidence did not establish that the child's malnourished state was attributable specifically to his actions. Petitioner established that the father "resided in the same household with the child[ ] and the[ ] mother," that he "was aware that the mother was unable to provide the child[ ] with adequate nutrition and that his assistance was critical to the health of his child[ ]," and that he "was reluctant, and sometimes unwilling, to offer his assistance in ensuring that his child[ ] received proper nourishment" ( Dustin B. , 24 A.D.3d at 1281, 807 N.Y.S.2d 252 ). Petitioner thereby established that the father "knew or should have known of circumstances requiring action to avoid harm or risk of harm to the child and failed to act accordingly" ( Matter of Raven B. [Melissa K.N.] , 115 A.D.3d 1276, 1278, 983 N.Y.S.2d 155 [4th Dept. 2014] [internal quotation marks omitted]).