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In re Gada B.

Supreme Court of New York, Fourth Department

December 27, 2013

IN THE MATTER OF GADA B. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; and CARLOS B., RESPONDENT, AND VIANEZ., RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered October 15, 2012 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent Vianez V. had neglected the subject child.

WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).

PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to article 10 of the Family Court Act, respondent mother appeals from an order in which Family Court found that she neglected the subject child. We note at the outset that it appears that the mother surrendered her parental rights to the subject child during a subsequent court appearance. Assuming, arguendo, that this appeal is not moot because "the finding of neglect constitutes a permanent and significant stigma that might indirectly affect the mother's status in future proceedings" (Matter of Jamiar W., 84 A.D.3d 1386, 1386-1387; cf. Matter of Simeon F., 58 A.D.3d 1081, 1081-1082, lv denied 12 N.Y.3d 709), we affirm. In this neglect proceeding, petitioner's burden was to "demonstrate 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... to exercise a minimum degree of care in providing the child with proper supervision or guardianship' " (Matter of Ilona H. [Elton H.], 93 A.D.3d 1165, 1166, quoting Nicholson v Scoppetta, 3 N.Y.3d 357, 368; see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [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 Kaleb U. [Heather V.—Ryan U.], 77 A.D.3d 1097, 1098; see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401, lv denied 21 N.Y.3d 862). Here, based upon the evidence presented by petitioner, combined with the adverse inference that the court properly drew based upon the mother's failure to testify (see Matter of Christine II., 13 A.D.3d 922, 923), we conclude that there is a sound and substantial basis to support the court's finding that "the child was in imminent danger of impairment as a result of [the mother's] failure to exercise a minimum degree of care" (Matter of Paul U., 12 A.D.3d 969, 971; see Matter of Claudina E.P. [Stephanie M.], 91 A.D.3d 1324, 1324; see generally Nicholson, 3 N.Y.3d at 368-370).

Finally, "[e]ven assuming, arguendo, that we agree with the [mother] that the court did not adequately state the grounds for its determination, we conclude that the error is harmless because the determination is amply support[ed] by the record" (Matter of Donell S. [Donell S.], 72 A.D.3d 1611, 1612, lv denied 15 N.Y.3d 705 [internal quotation marks omitted]).


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