Opinion
02-02-2024
In the MATTER OF ANGELINA M., Angelo M., and Khamani O. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Marilyn O., Respondent-Appellant, and Pedro M., Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (JOSEPH M. MARZOCCHI OF COUNSEL), FOR PETITIONER-RESPONDENT. ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD. WALTER BURKARD, MANLIUS, ATTORNEY FOR THE CHILDREN.
Appeal from an order of the Family Court, Onondaga County (Julie A. Cerio, J.), entered September 29, 2022, in a proceeding pursuant to Family Court Act article 10. The order, inter alia, determined that respondent Marilyn O. neglected one of the subject children and derivatively neglected the other two subject children.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (JOSEPH M. MARZOCCHI OF COUNSEL), FOR PETITIONER-RESPONDENT.
ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
WALTER BURKARD, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., BANNISTER, NOWAK, DELCONTE, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
[1, 2] Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order entered after a fact-finding hearing finding, inter alia, that she neglected her daughter and derivatively neglected her two sons. Contrary to the mother’s contention, there is a sound and substantial basis in the record for Family Court’s determination that the mother neglected her daughter. Pursuant to Family Court Act § 1012 (f) (i) (B), a neglected child is, as relevant here, one "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] parent … to exercise a minimum degree of care … by unreasonably inflicting or allowing to be inflicted harm." In determining whether a parent exercised a minimum degree of care, the court must consider what "a reasonable and prudent parent [would have done] … under the circumstances then and there existing" (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]; see Matter of Cameron J.S. [Elizabeth F.], 214 A.D.3d 1355, 1356-1357, 185 N.Y.S.3d 443 [4th Dept. 2023], lv denied 39 N.Y.3d 915, 2023 WL 3960603 [2023]). The evidence at the fact-finding hearing established that the daughter told the mother about incidents of sexual abuse by the daughter’s uncle and grandfather and the mother neglected to exercise the minimum degree of care by failing to take sufficient action in order to avoid actual physical, mental and emotional impairment to her daughter (see Matter of Telsa Z. [Denise Z.], 81 A.D.3d 1130, 1133, 916 N.Y.S.2d 370 [3d Dept. 2011]; see also Matter of Crystiana M. [Crystal M.-Pamela J.], 129 A.D.3d 1536, 1537, 10 N.Y.S.3d 769 [4th Dept. 2015]; see generally Nicholson, 3 N.Y.3d at 370, 787 N.Y.S.2d 196, 820 N.E.2d 840).
[3] Contrary to the mother’s further contention, the court properly drew a negative inference against her based on her failure to testify at the fact-finding hearing (see Matter of Noah C. [Greg C.], 192 A.D.3d 1676, 1678, 145 N.Y.S.3d 266 [4th Dept. 2021]; Matter of Rashawn J. [Veronica H.-B.], 159 A.D.3d 1436, 1437, 72 N.Y.S.3d 686 [4th Dept. 2018]).
[4] We also conclude that the finding of derivative neglect with respect to the mother’s two sons has a sound and sub- stantial basis in the record inasmuch as "the evidence with respect to the child found to be … neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [the mother’s] care" (Matter of Sean P. [Sean P.], 162 A.D.3d 1520, 1520, 78 N.Y.S.3d 549 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4440653 [2018] [internal quotation marks emitted]; see also Matter of Balle S. [Tristian S.], 194, A.D.3d 1394, 1396, 147 N.Y.S.3d 292 [4th Dept. 2021], lv denied 87 N.Y.3d 904, 2021 WL 3925791 [2021]).
[5] The mother contends that the Attorney for the Child (AFC) for the daughter and the AFC for her sons improperly advocated a. position that was contrary to the children’s express wishes. The mother’s contention is not preserved for our review because she made no motion to remove the AFCs (see Matter of Muriel v. Muriel, 179 A.D.3d 1529, 1530, 118 N.Y.S.3d 861 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3423744 [2020]; Matter of Edmonds v. Lewis, 175 A.D.3d 1040, 1041, 108 N.Y.S.3d 611 [4th Dept. 2019], lv denied 34 N.Y.3d 909, 2020 WL 728588 [2020]; Matter of Daniel K. [Roger K.], 166 A.D.3d 1560, 1561, 88 N.Y.S.3d 735 [4th Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409328 [2019]).
We have considered the mother’s remaining contentions and conclude that none warrants modification or reversal of the order.