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In re Josephine BB.

Supreme Court of New York, Third Department

February 27, 2014

In the Matter of JOSEPHINE BB., Alleged to be a Neglected Child. ATTORNEY FOR THE CHILD, Respondent; and ROSETTA BB., Appellant. (And Two Other Related Proceedings.)

Calendar Date: January 15, 2014

Tammy J. Arquette, Clifton Park, for appellant.

Mitchell S. Kessler, Cohoes, attorney for the child, respondent.

Before: Peters, P.J., Stein, McCarthy and Garry, JJ.


Stein, J.

Appeal from an order of the Family Court of Schenectady County (Powers, J.), entered July 3, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent's child to be neglected.

Respondent (hereinafter the mother) and Joseph DD. (hereinafter the father) are the unmarried parents of Josephine BB. (born in 2008), who resided with the mother from her birth. In late 2010, the parties each filed a petition for sole custody and, in January 2011, Family Court (Taub, J.H.O.) issued a temporary order awarding them joint legal custody, with the mother retaining primary physical custody. At that time, there was an open investigation by the Schenectady County Department of Social Services as a result of a hotline report against the mother regarding allegations that she failed to adequately address the child's medical and dental needs. In February 2011, based on a report by the Department of Social Services (see Family Ct Act § 1034), Family Court modified the temporary custody order to award physical custody to the father, with supervised visitation to the mother.

Shortly thereafter, with Family Court's permission, petitioner - the attorney for the child - commenced this proceeding on the child's behalf (see Family Ct Act § 1032 [b]), alleging that the mother neglected the child by, among other things, failing to address the child's pronounced dental issues and a possible speech delay and by refusing to cooperate with the child's medical and nutritional professionals, resulting in the child being dangerously underweight. In an amended petition, it was further alleged that, among other things, the mother had severely limited the child's food intake under the pretext of food allergies, but had failed to seek treatment by an allergist, and that the mother suffered from psychological problems that caused her to refuse recommended medical interventions for the child. After a prolonged fact-finding hearing, Family Court (Powers, J.) made a finding of neglect [1] based on the mother's failure to follow the recommendations of the child's medical providers, as a result of which the child was significantly underweight and at risk of failure to thrive. Upon the mother's appeal, we now affirm.

To establish neglect, a petitioner must demonstrate, by a preponderance of the evidence, that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to the failure of the parent or caretaker to exercise a minimum degree of care (see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]; Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004]; Matter of Lydia DD. [Khalil P.], 110 A.D.3d 1399, 1400 [2013]; Matter of Izayah J. [Jose I.], 104 A.D.3d 1107, 1108 [2013]). In determining the minimum degree of care, courts must objectively evaluate parental behavior in terms of whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" (Nicholson v Scoppetta, 3 N.Y.3d at 370; see Matter of Mary YY. [Albert YY.], 108 A.D.3d 803, 804 [2013], lv denied 21 N.Y.3d 865 [2013]; Matter of Clayton OO. [Nikki PP.], 101 A.D.3d 1411, 1411 [2012]; Matter of Samuel DD. [Margaret DD.], 81 A.D.3d 1120, 1122 [2011]). On this basis, a failure to provide adequate medical care and/or follow through with necessary medical treatment constitutes neglect (see Family Ct Act § 1012 [f] [i] [A]; Matter of Mary YY. [Albert YY.], 108 A.D.3d at 805; Matter of Samuel DD. [Margaret DD.], 81 A.D.3d at 1124).

There is a sound and substantial basis in the record before us to support Family Court's determination that the mother's refusal to follow the recommendations of the child's treating pediatrician constituted neglect (see Matter of Shay-Nah FF. [Theresa GG.], 106 A.D.3d 1398, 1401 [2013], lv denied 21 N.Y.3d 863 [2013]; Matter of Samuel DD. [Margaret DD.], 81 A.D.3d at 1124). John Petrillo, the child's pediatrician, testified that the child was seen by a physician in his office within a week of her birth, when her weight fell in the 25th percentile on the growth chart. The child was not seen again by that pediatric office until one year later, by which time the child had missed multiple routine checkups and required vaccinations. The child then weighed only 15 pounds, 12.4 ounces, placing her significantly below normal growth and development levels. During that visit, Petrillo conveyed his concerns about the child's growth to the mother, who claimed that the child had allergies to various foods, including milk. The mother returned the child to Petrillo in January 2010 and, because the child remained below the growth chart, Petrillo recommended rechallenging her with milk protein. The mother continued to express concerns about potential food allergies - for which the child had not been tested or examined by an allergist - and to restrict the child's diet, without any direction by Petrillo to do so. [2]

The mother thereafter missed various scheduled appointments with Petrillo, who next saw the child eight months later in August 2010. At that time, the child had gained only approximately three pounds and remained well below the growth chart. At a December 2010 appointment, the child had only gained one additional pound, prompting Petrillo to refer the child to a nutritionist. Although Petrillo testified that the mother was generally cooperative with the nutritionist, the mother discontinued bringing the child to this nutritionist, allegedly because the mother distrusted her.

Petrillo next saw the child in January 2011, a month before the father was awarded temporary custody. At that time, the child weighed less than she had the previous month. Petrillo then referred the child to an allergist because she was not consuming enough calories to enable her to gain sufficient weight. Petrillo explained that his primary concern was failure to thrive which, if left untreated, could endanger the child's growth and development, including "brain development, neurological development and subsequent cognitive development."

The child's medical records indicate that, although the mother brought the child to an allergist in January 2011, she would not agree to the recommended testing procedures, which were ultimately performed when the child was placed in the father's custody. As a result of the child's low weight, as well as the fact that the mother had missed multiple appointments (a total of six between August 2010 and January 2011) and was not following through with medical recommendations, Petrillo was concerned about the child's welfare and planned on filing a report with the State Central Registry. However, when he next saw the child in March 2011, after she had been in the father's care for approximately one month, the child had gained three pounds and was on the growth chart for the first time since her birth [3]. In our view, the foregoing supports a finding that the mother failed to provide the child with proper nourishment and medical treatment, as a result of which the child's physical condition was in imminent danger of becoming impaired (see Matter of Mary YY. [Albert YY.], 108 A.D.3d at 804).

Additionally, the evidence established that the mother had psychological issues that placed the child in imminent danger. "While evidence of mental illness, alone, does not support a finding of neglect, such evidence may be part of a neglect determination when the proof further demonstrates that a respondent's condition creates an imminent risk of physical, mental or emotional harm to a child" (Matter of Anthony TT. [Philip TT.], 80 A.D.3d 901, 902 [2011], lv denied17 N.Y.3d 704 [2011] [internal quotation marks and citation omitted]; see Matter of Henry W., 30 A.D.3d 695, 696 [2006]; Matter of Jesse DD., 223 A.D.2d 929, 930-931 [1996], lv denied88 N.Y.2d 803 [1996]; Matter of Madeline R., 214 A.D.2d 445, 446 [1995]). Here, David Horenstein, a clinical psychologist who evaluated the mother in connection with the hotline report, testified that the mother has, among other ...

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