| Matter of Alyson J. (Laurie J.) |
| 2011 NY Slip Op 07547 [88 AD3d 1201] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Alyson J. and Others, Children Alleged to beNeglected. Broome County Department of Social Services, Respondent; Laurie J.,Appellant. |
—[*1] Kuredin Eytina, Broome County Department of Social Services, Binghamton, for respondent. Carman M. Garufi, Binghamton, attorney for the children.
Garry, J. Appeals from two orders of the Family Court of Broome County (Connerton, J.),entered October 13, 2010 and February 14, 2011, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent'schildren to be neglected.
Respondent is the mother of seven children, ranging from infancy to age 10 at the outset ofthe legal proceedings. Four of the children have the same father, and the remaining three eachhave a different father, none of whom resides with respondent and the children. Petitionercommenced this proceeding in November 2009, after several indicated reports and more than ayear of assistance from petitioner and other organizations, alleging that respondent neglected herchildren by failing to provide them with a safe and sanitary home environment, proper [*2]supervision and adequate food, as well as by failing to maintain andteach proper hygiene.[FN*]In March 2010, Family Court temporarily removed five children from the home, allowing thetwo oldest sons to remain with respondent. Following the fact-finding hearing, the children werefound to be neglected; following the dispositional hearing, the temporary placements werecontinued, with three of the children continuing in the care and custody of petitioner, the oldestdaughter in the care of her father, the infant in the care of his maternal grandparents, and the twooldest sons remaining with respondent, all remaining subject to petitioner's supervision.Respondent appeals.
Respondent first argues that petitioner failed to establish neglect by a preponderance of theevidence (see Family Ct Act § 1046 [b] [i]). We disagree. A neglected child is one"whose physical, mental or emotional condition has been impaired or is in imminent danger ofbecoming impaired as a result of the failure of his [or her] parent . . . to exercise aminimum degree of care" with regard to food, clothing, shelter, education and medical care orproper guardianship or supervision (Family Ct Act § 1012 [f] [i]). The minimum degree ofcare required is measured by what "a reasonable and prudent parent" would do in suchcircumstances (Nicholson vScoppetta, 3 NY3d 357, 370 [2004]; see Matter of Aiden L., 47 AD3d 1089, 1090 [2008]).
Family Court based its determination on extensive testimony by two caseworkers, a parentaide, a police officer, several teachers, a school counselor and other education aides. Thewitnesses who visited respondent's apartments testified that conditions were unsanitary and even"unlivable." Garbage and dirty diapers were strewn about, floors were sticky, dirty dishes andfood were left out and attracted flies and cockroaches, bathrooms were not cleaned or tended to,and animal and human feces were found throughout the living area. Although the caseworkersand aides offered respondent assistance and instructions in resolving these concerns, testimonyrevealed that any improvement was at best short-lived. The children's hygiene was repeatedlyaddressed by petitioner and others, to no avail. Teachers and school personnel testified that thechildren often arrived with dirty faces and hands and wearing clothes that emitted a foul odor,such that the children had to be bathed and provided with clean clothes at their schools. Severalof the children suffered from head lice. Of great concern were the toileting problems of the twooldest boys. The oldest son, age 10 at the time of the petition, was still wearing diapers and thenext son, age seven, often had accidents in his clothes. Peers reacted negatively to the odoremitted by the oldest boy, and the other son was often sent home from school. Althoughrespondent maintained that the eldest son's problem arose from a medical issue, she failed topresent any evidence supporting this assertion.
In addition to the deplorable condition of the home and the hygiene issues of the children,respondent also failed to properly supervise the children. The household was chaotic, withchildren fighting and running rampant. The younger children were allowed to carry the infant,and a caseworker discovered the three-year-old playing in the street. This lack of controlcontinued even during respondent's biweekly visitation with all of the children after some weretemporarily removed from her home, and a caseworker often had to step in to restore order.Further, respondent was not concerned about allowing sex offenders and other questionableindividuals around the children. Given the sound and substantial basis in the record, we agreewith Family Court's finding of neglect, established by a preponderance of the evidence (see [*3]Matter of Draven I. [Jenlyn I.], 86 AD3d 746, 747-748[2011]; Matter of Bianca QQ. [KiyonnaSS.], 75 AD3d 679, 681 [2010]; Matter of David II., 49 AD3d 1093, 1095 [2008]).
We further disagree with respondent's contention that the attorney for the children failed toadequately represent the children's interests. The duty of the attorney for the children is toadvocate and express the children's wishes to the court, but on occasion it is acceptable forcounsel to deviate from this obligation; the attorney is specifically allowed to advocate a differentposition when the children's wishes would likely "result in a substantial risk of imminent, seriousharm to the child[ren]" (22 NYCRR 7.2 [d] [3]; see Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094[2009], lv denied 15 NY3d 715 [2010]). Here, counsel had been involved with thechildren for several years and was well aware of their conditions, and we will thus accept thecontrary position as in the best interests of the children (see Matter of Carolyn S. v Tompkins County Dept. of Social Servs., 80AD3d 1087, 1091 [2011]; Matter of James MM. v June OO., 294 AD2d 630, 633[2002]). At the fact-finding hearing, the attorney for the children did indicate his clients' wishes,and properly informed Family Court that he was deviating from them.
Finally, lacking a notice of appeal from the appellate attorney for the children, the argumentthat the two oldest boys should also be placed with petitioner is not properly before us (see Matter of Sharyn PP. v RichardQQ., 83 AD3d 1140, 1143-1144 [2011]).
Mercure, J.P., Peters, Stein and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: An amended neglect petitionwas filed thereafter to include the youngest child.