IN THE MATTER OF LASONDRA D. WYOMING COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; and CASSANDRA D., RESPONDENT, AND VICTOR S., RESPONDENT-APPELLANT. (APPEAL NO. 1.)
A. CAPANNA, WEBSTER, FOR RESPONDENT-APPELLANT.
WILLIAM D. BRODERICK, JR., ATTORNEY FOR THE CHILD, ELMA.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER,
from an order of the Family Court, Wyoming County (Michael F.
Griffith, J), entered November 9, 2015 in a proceeding
pursuant to Family Court Act article 10. The order, among
other things, adjudged that respondent Victor S. had
neglected the subject child.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
In this proceeding pursuant to Family Court Act article 10,
respondent father appeals, in appeal No. 1, from an order in
which Family Court, inter alia, found that he neglected his
daughter. In appeal No. 2, the father appeals from a further
order in which the court, inter alia, awarded custody of the
subject child to the nonparty maternal grandmother.
we conclude that the appeal from the order in appeal No. 2
must be dismissed. In that appeal, the father challenges the
court's determination to place the subject child with her
maternal grandmother, which was initially issued in a
temporary order of removal entered prior to the order in
appeal No. 1, and which was continued in the order of
disposition that is the subject of appeal No. 2. Those orders
were issued upon the father's consent, and the father
also consented to the continuation of that placement in a
subsequent permanency order. The father's challenges to
the dispositional provisions of those orders are not properly
before this Court because "no appeal lies from that part
of an order entered on consent" (Matter of Charity
M. [Warren M.] [appeal No. 2], 145 A.D.3d 1615, 1617;
see Matter of Misti Z., 300 A.D.2d 1147, 1147).
to the father's contention in appeal No. 1, we conclude
that petitioner established by a preponderance of the
evidence that the father neglected the child. It is well
settled that "a party seeking to establish neglect must
show, by a preponderance of the evidence (see Family
Ct Act § 1046 [b] [i]), first, that a 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 or caretaker to exercise a
minimum degree of care in providing the child with proper
supervision or guardianship" (Nicholson v
Scoppetta, 3 N.Y.3d 357, 368; see Matter of Afton C.
[James C.], 17 N.Y.3d 1, 9). " The minimum degree
of care standard requires an objective evaluation of [the
parent's] actions in light of what a reasonable and
prudent parent would have done' " (Matter of
Dustin B., 24 A.D.3d 1280, 1281; see Matter of Paul
U., 12 A.D.3d 969, 971). We reject the father's
contention that the court failed to apply the proper legal
standard in determining that the father neglected the child.
to the father's further contention, " [a] single
incident where the parent's judgment was strongly
impaired and the child [was] exposed to a risk of substantial
harm can sustain a finding of neglect' " (Matter
of Raven B. [Melissa K.N.], 115 A.D.3d 1276, 1278).
Here, petitioner established by a preponderance of the
evidence that the father neglected the child because he
"should have known of [respondent] mother's
substance abuse and failed to protect the child"
(Matter of Joseph Benjamin P. [Allen P.], 81 A.D.3d
415, 416, lv denied 16 N.Y.3d 710; see Matter of
Donell S. [Donell S.], 72 A.D.3d 1611, 1612, lv
denied 15 N.Y.3d 705; Matter of Albert G., Jr.
[Albert G., Sr.], 67 A.D.3d 608, 608). Although the
father denied knowledge of the mother's substance abuse,
"[w]here, as here, issues of credibility are presented,
the hearing court's findings must be accorded great
deference" (Matter of Todd D., 9 A.D.3d 462,
463; see Matter of Holly B. [Scott B.], 117 A.D.3d
1592, 1592), and we perceive no reason to reject the
court's credibility determinations.
the father failed to preserve for our review his contention
that the court was biased against him (see Matter of
Reinhardt v Hardison, 122 A.D.3d 1448, 1448-1449;
Matter of Brian P. [April C.], 89 A.D.3d 1530,
1531). In any event, that contention is without merit