In the Matter of Mia G. (Anonymous). Suffolk County Department of Social Services, respondent; William B. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Alyssa G. (Anonymous). Suffolk County Department of Social Services, respondent; William B. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Lilliana B. (Anonymous). Suffolk County Department of Social Services, respondent; William B. (Anonymous), appellant. (Proceeding No. 3) Docket Nos. N-3996-15, N-8359-15, N-8360-15
G. Russell, Selden, NY, for appellant.
M. Brown, County Attorney, Central Islip, NY (Gary L.
Rosenthal of counsel), for respondent.
M. Garcia, Central Islip, NY, attorney for the children.
C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS-RADIX,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from two orders of fact-finding and disposition and two
orders of protection of the Family Court, Suffolk County
(Richard Hoffmann, J.), all dated September 17, 2015. The
orders of fact-finding and disposition, one as to the child
Lilliana B. and one as to the children Mia G. and Alyssa G.,
after a fact-finding hearing, determined that the father
neglected the subject children. The orders of protection
ordered the father to stay away from the subject children up
to and including September 17, 2016, except when having
that the orders of fact-finding and disposition and the
orders of protection are affirmed, without costs or
the orders of protection have expired by their own terms, the
appeals from the orders of protection have not been rendered
academic "given the totality of the enduring legal and
reputational consequences" of the orders of protection
(Matter of Veronica P. v Radcliff A., 24
N.Y.3d 668, 673).
appeal, the father challenges the finding of neglect. The
father's contention that the standard for determining
neglect should be "clear and convincing" to meet
federal due process standards is without merit. "In a
fact-finding hearing to determine whether a child is abused
or neglected, the provision of Family Court Act §
1046(b) that a finding of neglect must be based on a
preponderance of the evidence' affords due process under
the Federal Constitution" (Matter of Tammie Z.,
66 N.Y.2d 1, 3).
neglected child includes a child whose parent has failed to
provide "the child with adequate... medical care"
(Family Ct Act § 1012[f][i][A]). "To find medical
neglect, there must be a determination that the parent did
not seek or accept medical care, and that such failure placed
the child in imminent danger of becoming impaired"
(Matter of Shawndel M., 33 A.D.3d 1006, 1006).
"[T]he most significant factor in determining whether a
child is being deprived of adequate medical care... is
whether the parents have provided an acceptable course of
medical treatment for their child in light of all of the
surrounding circumstances" (Matter of Hofbauer,
47 N.Y.2d 648, 656). Here, the evidence showed that the
father medically neglected the child Lilliana B. when he
failed to seek medical attention for her for a week despite
Lilliana B. being born approximately six weeks premature at
home and without any medical assistance. Further, when he
finally did seek medical attention for Lilliana B. and was
advised to immediately take her to the emergency room, he
waited a full day before doing so (see Matter of Richard
S. [Lacey P.], 130 A.D.3d 630; Matter of Jaelin L.
[Kimrenee C.], 126 A.D.3d 795; Matter of I-Conscious
R. [George S.], 121 A.D.3d 566; Matter of Faridah
W., 180 A.D.2d 451). The result of this delay was
Lilliana B. being admitted to the pediatric intensive care
unit at Stony Brook Hospital for four days. Moreover, because
the evidence established that the father was a person legally
responsible for the children Mia G. and Alyssa G. (see
Matter of Yolanda D., 88 N.Y.2d 790; Matter of
Isaiah L. [Chris B.], 119 A.D.3d 797), the medical
neglect finding as to Lilliana B. forms the basis upon which
a derivative neglect finding may be made as to Mia G. and
Alyssa G. (see Matter of Richard S. [Lacey P.], 130
evidence further showed that the father neglected each of the
children by his misuse of drugs, including cocaine and
marijuana (see Matter of Darrell W. [Tenika C.], 110
A.D.3d 1088; Matter of Keoni Daquan A. [Brandon W. -
April A.], 91 A.D.3d 414; Matter of Paolo W.,
56 A.D.3d 966; Matter of William T., 185 A.D.2d 413;
Family Ct Act §§ 1012[f][i][B]; 1046[a][iii]). The
father admitted at the fact-finding hearing that he had been
using cocaine and marijuana since 2013 and that he used
cocaine about three times and used marijuana about five times
during the time that Lilliana B. was in his care. Moreover, a
witness from the Treatment Alternative for Safer Communities
program testified that the father tested positive for
marijuana and cocaine pursuant to a 30-day hair follicle test
on May 5, 2015. This evidence established a prima facie case
of neglect as to the three subject children, and the father
failed to demonstrate that he had entered a rehabilitation
program before the neglect petitions were filed and,
therefore, failed to rebut that showing (see Matter of
Darrell W. [Tenika C.], 110 A.D.3d 1088; Matter of
Paolo W., 56 A.D.3d 966; Matter of Krewsean S.,
273 A.D.2d 393).
father's remaining contentions are without merit.
the Family Court properly found that the father neglected the
subject children ...