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In re Emmanuel J.

Supreme Court of New York, Third Department

April 13, 2017

In the Matter of EMMANUEL J. and Others, Alleged to be Neglected Children. FULTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; MAXIMUS L., Appellant. (And Three Other Related Proceedings.)

          Calendar Date: February 21, 2017

          The Arquette Law Firm, PLLC, Clifton Park (Tammy Arquette of counsel), for appellant.

          Michael M. Albanese, Fulton County Department of Social Services, Johnstown, for respondent.

          Karen R. Crandall, Glenville, attorney for the children.

          Alexandra G. Verrigni, Rexford, attorney for the children.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

          MEMORANDUM AND ORDER

          Clark, J.

         Appeal from an order of the Family Court of Fulton County (Skoda, J.), entered November 2, 2015, which granted petitioner's applications, in four proceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

         Respondent is the father of Maximus K., Arianna K. and Sophia K. (born in 2011, 2012 and 2015, respectively) and a person legally responsible for the care of Emmanuel J., Phoenix J. and Eva K. (born in 2005, 2008 and 2010, respectively). The children, who all have the same mother, resided with respondent, their mother and their maternal and paternal grandmothers. On March 20, 2015, following observations of deplorable conditions in the family home, petitioner temporarily removed the children from the home on an emergency basis. That same day, petitioner commenced a neglect proceeding against respondent, alleging that the unsafe and unsanitary conditions in the home placed the children at imminent risk of harm to their physical, emotional or mental welfare. In April 2015, following improvements to the condition of the home, the children were returned. However, in May 2015, petitioner filed another neglect petition against respondent, alleging, among other things, that the unsafe and unsanitary conditions persisted in the home and that respondent had placed Sophia at risk of serious physical harm when he failed to immediately and appropriately respond to signs that she was in distress and having difficulty breathing. [1]

         Following a fact-finding hearing, Family Court adjudged the children to have been neglected by respondent. The matter then proceeded to a dispositional hearing, which was conducted over two days. At the conclusion of the first day, Family Court temporarily placed the children in the care and custody of petitioner pending final disposition of the neglect petitions. Following the dispositional hearing, Family Court issued a dispositional order continuing the children's placement in the care and custody of petitioner until the completion of a permanency hearing. Respondent appeals.

         On appeal, respondent curiously does not advance a wholesale challenge to Family Court's determination that respondent had neglected all of the children because the deplorable conditions in the family home created an imminent risk of harm to their physical and emotional well-being. Rather, respondent argues that a sound and substantial basis does not exist in the record to support Family Court's individual findings that he failed to "comprehend and adequately address the needs" of Phoenix and Sophia, thereby creating an imminent risk of harm to their physical and/or emotional safety.

         "[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that [the] child[ren]'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[ren] is a consequence of the failure of the... caretaker to exercise a minimum degree of care in providing the child[ren] with proper supervision or guardianship" (Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004]; see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]; Matter of Zackery D. [Tosha E.], 129 A.D.3d 1121, 1122 [2015]). A finding of neglect requires only an imminent threat of injury or impairment, not actual injury or impairment, and such threat may be established through a single incident or circumstance (see Matter of Cori XX. [Michael XX.], 145 A.D.3d 1207, 1207-1208 [2016]; Matter of Xavier II., 58 A.D.3d 898, 899 [2009]; Matter of Aiden L., 47 A.D.3d 1089, 1090 [2008]). In determining whether a caretaker has failed to exercise a minimum degree of care, his or her behavior "must be evaluated 'objectively, ' in light of whether 'a reasonable and prudent [caretaker would] have so acted, or failed to act, under the circumstances then and there existing'" (Matter of Rebecca KK., 51 A.D.3d 1086, 1087 [2008], quoting Nicholson v Scoppetta, 3 N.Y.3d at 370; see Matter of Afton C. [James C.], 17 N.Y.3d 1, 9 [2011]). We will not disturb Family Court's findings of fact if they are supported by a sound and substantial basis in the record (see Matter of Jeromy J. [Latanya J.], 122 A.D.3d 1398, 1398-1399 [2014], lv denied 25 N.Y.3d 901');">25 N.Y.3d 901 [2015]; Matter of Kaleb U. [Heather V.-Ryan U.], 77 A.D.3d 1097, 1098 [2010]).

         Turning first to Phoenix, a social worker at Phoenix's school testified that Phoenix "often" came to school "unkempt, " dressed in "ill-fitting" clothing or in clothes that were inappropriate for the weather and smelling of urine or body odor. She testified that "typically" Phoenix would be sent to the school nurse to address her hygiene and, depending on the circumstances, would be bathed, given appropriate clothing or directed to brush her teeth. School records confirmed that, throughout the 2014-2015 school year, Phoenix was sent to the nurse's office to address, among other things, her "strong odor, " which was described in the records as a "recurrent issue." The child's doctor testified that Phoenix suffered from urinary incontinence and frequent urinary tract infections. The evidence also established that Phoenix had, on more than one occasion, been locked in her bedroom overnight, that she was therefore forced to urinate on the mattress where she slept and that the resulting mess would not be cleaned.

         Further, the record demonstrated that Phoenix's poor hygiene while in the care of respondent was negatively affecting her emotionally and academically. The school social worker testified that, in addition to missing school because she repeatedly had head lice, Phoenix would often cry when the issue of her hygiene was raised, state that she was not supposed to visit the nurse's office and worry that she would get in trouble with respondent and her mother for doing so. In addition, the school social worker stated that faculty noticed a marked improvement in Phoenix's demeanor, confidence and academic performance when she was in petitioner's care, as opposed to respondent's care. Together, the foregoing evidence clearly demonstrated that Phoenix's poor hygiene was an ongoing issue, not an isolated incident, of which respondent was aware and failed to exercise a minimum degree of care. Thus, Family Court's finding that respondent's failure to "comprehend and adequately address the ...


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