Opinion
530165
02-25-2021
In the MATTER OF AIDEN LL. and Others, Alleged to be Neglected Children. Sullivan County Department of Family Services, Respondent; v. Tonia C., Appellant.
Ivy M. Schildkraut, Rock Hill, for appellant. Sullivan County Department of Family Services, Monticello (Constantina Hart of counsel), for respondent. Jane M. Bloom, Monticello, attorney for the children.
Ivy M. Schildkraut, Rock Hill, for appellant.
Sullivan County Department of Family Services, Monticello (Constantina Hart of counsel), for respondent.
Jane M. Bloom, Monticello, attorney for the children.
Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered August 22, 2019, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.
Respondent is the maternal great aunt of three children (born in 2013, 2016 and 2018). The children were removed from the custody of their mother and, pursuant to three separate orders, respondent had legal and physical custody of them. These orders provided that the children's mother would have visitation with the children as supervised by respondent or respondent's designee. Petitioner commenced this neglect proceeding in 2019 alleging that respondent permitted the maternal grandmother to care for the children alone, despite warnings from petitioner's caseworkers that the maternal grandmother was not an appropriate resource for the children. Petitioner also alleged that respondent permitted the mother to have unsupervised visitation with the youngest child and that the youngest child was physically abused during such visitation. Following a hearing, Family Court granted the petition. Respondent appeals.
Petitioner bore the burden of proving by a preponderance of the evidence "first, that the children'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 children is a consequence of the failure of [the respondent] to exercise a minimum degree of care in providing the children with proper supervision or guardianship" ( Matter of Kieran XX. [Kayla ZZ.], 154 A.D.3d 1094, 1095, 62 N.Y.S.3d 572 [2017] [internal quotation marks and citation omitted]; see Matter of Raelene B. [Alex D.], 179 A.D.3d 1315, 1317, 116 N.Y.S.3d 787 [2020] ; Matter of Lilliana K. [Ronald K.], 174 A.D.3d 990, 991, 107 N.Y.S.3d 462 [2019] ). "There are two prongs: actual or imminent danger, and failure to exercise a minimum degree of care" ( Matter of Javan W. [Aba W.], 124 A.D.3d 1091, 1091, 2 N.Y.S.3d 654 [2015] [citation omitted], lv denied 26 N.Y.3d 905, 2015 WL 5446151 [2015] ). As to the former, "[a]ctual impairment or injury is not required, but only that it be near or impending" ( Matter of Xavier II., 58 A.D.3d 898, 899, 872 N.Y.S.2d 561 [2009] [internal quotation marks and citation omitted]; see Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] ). Regarding the latter, "the relevant inquiry is whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances" ( Matter of Mark WW. v. Jennifer B., 158 A.D.3d 1013, 1015, 71 N.Y.S.3d 198 [2018] [internal quotation marks and citations omitted]; see Matter of Maggie YY. [Lisa ZZ.], 172 A.D.3d 1562, 1562–1563, 100 N.Y.S.3d 402 [2019] ).
The hearing evidence discloses that respondent was told by numerous caseworkers from Child Protective Services that the maternal grandmother was considered to be an inappropriate caregiver based upon her history of indicated reports involving her children. This history included indicated reports involving allegations of emotional neglect and inadequate supervision. According to one caseworker, one of the indicated reports led to the removal of one of the maternal grandmother's children. The caseworker also testified that this history was reviewed during a vetting process in 2016 as part of a removal proceeding concerning two of the mother's children and that it was concluded that the maternal grandmother was an inappropriate resource for the children. The caseworker stated that this history would not have changed between 2016 and 2019. The caseworker further stated that respondent did agree at one point that the maternal grandmother was not someone who could babysit the children. Indeed, respondent testified that she was advised that the maternal grandmother was not allowed to be alone with the children. Evidence was also adduced that respondent acknowledged that the maternal grandmother had issues raising the mother and that the maternal grandmother was the reason why the mother acted the way that she did with the subject children.
The foregoing amply supports the conclusion that respondent failed to exercise a minimum degree of care when she allowed the maternal grandmother to care for the children despite multiple warnings that the maternal grandmother was an inappropriate caregiver (see Matter of Boryana D. [Victoria D.], 157 A.D.3d 1011, 1012, 68 N.Y.S.3d 591 [2018] ; Matter of Alaina E., 33 A.D.3d 1084, 1086, 823 N.Y.S.2d 227 [2006] ; Matter of Daniel DD., 142 A.D.2d 750, 751, 530 N.Y.S.2d 314 [1988] ). To the extent that respondent asserts that the advisements about the maternal grandmother provided by the caseworkers were unclear or never provided, Family Court credited the testimony of the caseworkers concerning their warnings to respondent.
Regarding the other prong of neglect – whether, as relevant here, the children were placed in imminent harm – petitioner relies almost entirely on the maternal grandmother's history of indicated reports. This history, however, shows that the children were placed in, at most, possible harm (see Matter of Javan W. [Aba W.], 124 A.D.3d at 1092–1093, 2 N.Y.S.3d 654 ). We further note that most of this history pertained to incidents that occurred over 10 years prior to the filing of the instant neglect petition. In the absence of evidence that the children were placed in imminent harm, petitioner failed to prove that respondent neglected the children when she allowed the maternal grandmother to care for the children by herself (see id. ; Matter of Deshanna A., 296 A.D.2d 605, 606, 746 N.Y.S.2d 62 [2002] ; compare Matter of Katlyn GG. [Christine GG.], 2 A.D.3d 1233, 1234–1235, 770 N.Y.S.2d 204 [2003] ).
Finally, respondent did not raise any challenge to the finding that she neglected the youngest child by permitting the mother to have unsupervised visitation with him and, therefore, she has abandoned any argument with respect thereto (see Matter of Izayah J. [Jose I.], 104 A.D.3d 1107, 1108 n. 2, 962 N.Y.S.2d 491 [2013] ). In any event, the record supports the neglect determination as to this allegation.
Garry, P.J., Lynch, Clark and Colangelo, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted that part of the petition premised upon allegations that respondent neglected the children when allowing the maternal grandmother to care for the children; petition dismissed to said extent; and, as so modified, affirmed.