| Matter of Aiden L. |
| 2008 NY Slip Op 00311 [47 AD3d 1089] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Aiden L., a Child Alleged to be Neglected.Columbia County Department of Social Services, Respondent; Kristen M., Appellant, et al.,Respondent. |
—[*1] Dena Barnes, Columbia County Department of Social Services, Hudson (James A. Carlucciof counsel), for respondent. Cynthia Feathers, Law Guardian, Albany.
Kavanagh, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered August 7, 2006, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondents' child to be neglected.
On November 24, 2005, Donald Sheldon, petitioner's caseworker, was summoned to thehome that respondent Kristen M. (hereinafter the mother) shared with the child (born in 2004)after police responded to a domestic violence complaint involving the mother and respondentDonald L. (hereinafter the father).[FN1]Sheldon, who found the home to be in a state of extreme [*2]disarray, was informed that the mother and the father had becomeinvolved in an angry confrontation because the father believed that the mother stole money fromhim. The father, while searching for the money, emptied furniture drawers throughout theapartment and threw objects, including compact discs, one of which reportedly hit thechild.[FN2]The mother claimed that the condition of the home when seen by Sheldon was caused by thefather's conduct during his outburst.
Because he had concerns about the condition of the home as well as the presence of thefather, Sheldon, with the mother's consent, temporarily removed the one-year-old child from themother's care. The next day, in a petition dated November 25, 2005, petitioner commenced thisFamily Court Act article 10 proceeding charging that respondents neglected the child by allowinghim to be exposed to an incident involving domestic violence and by compelling the child to livein a residence that was in such a deplorable condition. The same day, the mother filed anapplication for the child to be returned to her custody. After hearing from both parties, FamilyCourt issued a temporary order of protection dated November 28, 2005 granting the mother'spetition but conditioned it upon the mother agreeing to keep the residence in a clean andhabitable condition, allowing petitioner to perform safety checks and ensuring that the child haveno contact with the father. After further proceedings, including court-ordered mental healthevaluations of both parties, the court issued a fact-finding and dispositional order whichconcluded that respondents had neglected the child based upon the condition of the home asfound by the authorities on November 24, 2005. The order released the child to the mother'scustody, but placed the mother under an order of supervision which would not expire until May17, 2007. The mother now appeals from this order.
A finding of neglect will be sustained if there is a showing by a preponderance of evidence(see Family Ct Act § 1046 [b] [i]) that the parents of a child have by their actionsor omissions created a condition which constitutes an imminent threat to the child's physical,mental or emotional well-being (see Family Ct Act § 1012 [f] [i]; Nicholson v Scoppetta, 3 NY3d357, 368 [2004]; Matter of KristaL., 20 AD3d 783, 784 [2005]). A finding of neglect may be based on such acircumstance even where it has not actually resulted in any impairment to the child; an imminentthreat that such an impairment might indeed result is sufficient to support such a finding (seeMatter of Billy Jean II., 226 AD2d 767, 770 [1996]). Such a threat may well be found tohave resulted from a single incident or circumstance (see Matter of Justin O., 28 AD3d 877, 878 [2006]; Matter ofVictoria CC., 256 AD2d 931, 932 [1998]).
Here, the condition of the apartment was deplorable and was not, as the mother claimed, atransitory condition. The entire apartment, according to petitioner's caseworker, was permeatedwith a rancid, foul odor, garbage bags were stacked by the door, half-emptied food containerswere sprawled across the living room, dishes encrusted with decayed food were piled in the sink,an open bucket containing a cleaning solution was on the floor, and sharp utensils were scatteredthroughout the apartment all within the child's reach when he was not confined to his playpen.Other rooms of the apartment were so cluttered with clothes and trash that it was practically[*3]impossible to walk through them without encounteringdebris. The mother's explanation that this was a temporary circumstance is not only at odds withthe state of the apartment as described by petitioner's caseworker, but also strongly suggests thatshe does not appreciate or recognize the imminent threat these conditions posed to herone-year-old son. Measuring the mother's conduct against what a reasonable and prudent parentwould do in similar circumstances, we find that this behavior did not satisfy the standardrequiring a minimum degree of care (see Family Ct Act § 1012 [f] [i];Nicholson v Scoppetta, 3 NY3d at 370; Matter of Alaina E., 33 AD3d 1084, 1086 [2006]) and, accordingly,we find that Family Court properly found the child to be neglected.
Moreover, as the mother concedes, it was within Family Court's discretion to reject therequest for an adjournment in contemplation of dismissal (see Family Ct Act §1039 [a]). Given the court's assessment of the credibility of the witnesses and its evaluation ofthe evidence presented at the hearing, we cannot, giving due deference to these findings (see Matter of Joshua BB., 27 AD3d867, 869 [2006]), conclude that the court abused its discretion (see Matter of ZacharyCC., 301 AD2d 714, 715 [2003]).
Mercure, J.P., Peters, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Respondents are not marriedand, while they do not reside together, the father would stay with the mother and child at theirhome several days each week.
Footnote 2: The mother refused to filecriminal charges against the father.