In the Matter of JACKLYNN BB., Alleged to be a Neglected Child. SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; DONNA CC., Appellant. (And Another Related Proceeding.)
Calendar Date: October 19, 2017
Alexandra J. Buckley, Clifton Park, for appellant.
Christopher H. Gardner, County Attorney, Schenectady (Sarah
H. Petraccione of counsel), for respondent.
R. Crandall, Schenectady, attorney for the child.
Before: Egan Jr., J.P., Devine, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Schenectady County
(Burke, J.), entered August 8, 2016, which granted
petitioner's application, in a proceeding pursuant to
Family Ct Act article 10, to adjudicate the subject child to
is the mother of a child (born in 1999). In August 2015,
while living with respondent, the child overdosed on the drug
Ambien, for which the child had a prescription, and left the
home. Upon becoming dizzy, the child called 911 and was taken
to the hospital by ambulance, where it was determined that
the overdose had been accidental and that the child should be
discharged because she was not a threat to herself or others.
Respondent refused to take the child home. During an ensuing
investigation by petitioner, respondent again declined to
allow the child to return home or to make an alternate plan
for the child. The father, who did not live with respondent,
was also unwilling to provide a home for the child. Pursuant
to respondent's written consent, the child was removed
from respondent's care and placed in foster care.
Petitioner thereafter commenced two neglect proceedings, one
against respondent and a second against the father. After a
hearing, Family Court found that the child was neglected by
respondent and the father. Respondent appeals.
is established when the preponderance of the evidence shows
that the child's physical, mental or emotional condition
has been impaired or is in imminent danger of becoming
impaired as a result of the failure of his or her parent to
exercise a minimum degree of care in providing the child with
proper supervision or guardianship. Determining whether a
parent exercised the requisite minimum degree of care is
evaluated by asking whether, under the circumstances, a
reasonable and prudent parent would have so acted"
(Matter of Clayton OO. [Nikki PP.], 101 A.D.3d 1411,
1411  [internal quotation marks, brackets, ellipses and
citations omitted]). "A parent can be found to have
neglected a child by refusing to take the child into his or
her home and by indicating a desire to have no contact with,
or responsibility for, the child" (Matter of Safiyah
T. [Tommie D.T.], 133 A.D.3d 678, 679  [citations
omitted]; see Matter of Kimberly F.[Maria F.], 146
A.D.3d 562, 563 , lv denied 29 N.Y.3d 902');">29 N.Y.3d 902
; Matter of Shawntay S. [Stephanie R.], 114
A.D.3d 502, 502 ; Matter of Clayton OO. [Nikki
PP.], 101 A.D.3d at 1412; Matter of Lamarcus E.
[Jonathan E.], 94 A.D.3d 1255, 1256-1257 ).
admits that she was unwilling to allow the child to return to
her home and that she consented to placement of the child in
foster care. Although the record shows that the child had a
history of struggling with mental health issues and that her
relationship with respondent was tumultuous, as evidenced by
the child's purported threats to kill either respondent
or herself, respondent's conduct is not excused by the
fact that the child may have had disciplinary or behavioral
issues (see Matter of Kimberly F.[Maria F.], 146
A.D.3d at 563, citing Matter of Clayton OO. [Nikki
PP.], 101 A.D.3d at 1412). Accordingly, Family Court
properly found that the child was neglected by respondent.
we are unpersuaded by respondent's contention that she
did not receive the effective assistance of counsel. Her
primary argument is that counsel failed to adduce sufficient
evidence of the child's prior mental health history,
including testimony from mental health experts, which she
contends would have permitted Family Court to appreciate her
reason for leaving the child at the hospital. Her argument is
unavailing, inasmuch as she did not allege, much less
demonstrate, that such proof would have established that it
was unsafe for the child to return home (see Matter of
Julian P. [Colleen Q.], 129 A.D.3d 1222, 1224 ).
Moreover, although inartful at times, counsel conducted
sufficient direct and cross-examinations during the
fact-finding hearing and, upon review of the entire record,
we find that respondent received meaningful representation
and suffered no prejudice as a result of counsel's
performance (see Matter of Julian P. [Colleen Q.],
129 A.D.3d at 1224-1225).
Jr., J.P., Devine, Clark and ...