In the Matter of JAMEL HH. and Others, Alleged to be Neglected Children. SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; LINDA HH., Respondent. ATTORNEY FOR THE CHILDREN, Appellant.
Calendar Date: October 18, 2017
Kessler, Cohoes, attorney for the children, appellant.
K. Hayner, Saratoga Springs, for Linda HH., respondent.
Before: Egan Jr., J.P., Lynch, Rose, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Schenectady County
(Polk, J.), entered April 18, 2016, which granted
petitioner's application, in a proceeding pursuant to
Family Ct Act article 10, to adjudicate the subject children
to be neglected.
is the mother of three children, two sons (born in 2002 and
2005) and a daughter (born in 2009), and the youngest son
(hereinafter the child) is the subject of this appeal.
Petitioner commenced a neglect proceeding under Family Ct Act
article 10 and, following a fact-finding hearing in which
respondent admitted to leaving the children unsupervised,
Family Court found the children to be neglected. During the
dispositional hearing, the attorney for the children made a
formal letter request for a Lincoln hearing or an in
camera hearing so that the court could determine the
child's wishes. The attorney for the children renewed
this request at the close of the dispositional hearing and
Family Court denied it. In the April 2016 order, Family
Court, among other things, placed custody of the child in
petitioner's care. The attorney for the children appeals.
primary concern in... a [dispositional] hearing is the best
interests of the child, an inquiry that involves
consideration of the parent's ability to supervise the
child and any potential threat of future abuse or
neglect" (Matter of Victoria XX. [Thomas XX.],
110 A.D.3d 1168, 1171  [internal quotation marks and
citations omitted]; see Matter of Emmanuel J. [Maximus
L.], 149 A.D.3d 1292, 1296 ; Matter of Alaina
E., 33 A.D.3d 1084, 1087 ; Matter of Kathleen
OO., 232 A.D.2d 784, 786 ). The psychologist, who
met with respondent and the children, prepared a report and
testified at the dispositional hearing. The psychologist
testified that the child was "highly distractable"
and had "difficulties focusing" and noted in his
report that he diagnosed the child with behavioral issues.
Respondent told the psychologist that the child had impulsive
episodes in school and at home and provided him with "a
history... concerning her own inadequacies and difficulties
in managing th[e] child." Critically, the psychologist
testified that the home situation was "chaotic" and
that respondent was not able to meet the child's needs.
In this regard, the psychologist stated that respondent
recognized that there were available treatment options that
could do more than what she could provide for the child.
While recognizing the potential negative impact of removing
the child from the home, the psychologist nonetheless
concluded that placing the child outside of the home would be
beneficial to the child and to the entire family.
placing the child in petitioner's custody, Family Court
fully credited the psychologist's opinion and testimony.
Family Court found that respondent was overwhelmed and that
the child had special needs that could not be met in
respondent's home. Deferring to Family Court's
factual findings and taking into account that both petitioner
and respondent supported placing the child in
petitioner's custody, we conclude that Family Court's
determination was supported by a sound and substantial basis
in the record (see Matter of Alexis AA., 91 A.D.3d
1073, 1074 , lv denied 18 N.Y.3d 809');">18 N.Y.3d 809 ;
Matter of Heather WW., 300 A.D.2d 940, 941-942
; Matter of William G., 233 A.D.2d 702,
reject the attorney for the children's assertion that
Family Court erred in failing to conduct a Lincoln
hearing or an in camera hearing to ascertain the child's
wishes. In denying the attorney for the children's
request, Family Court noted that, given that the child has
"significant needs and significant issues, " a
meeting with the child would not be helpful on the issue of
the child's placement. Moreover, the child's wishes
were expressed in the closing argument of the attorney for
the children. Accordingly, we find that Family Court did not
err in denying the attorney for the children's request to
conduct some form of interview with the child (see Matter
of Shawna U., 277 A.D.2d 731, 734 ). The attorney
for the children's remaining contentions, including his
challenges to the psychologist's testimony and report,
have been considered and lack merit.
Jr., J.P., Lynch, Rose and ...