| Matter of Shay-Nah FF. (Theresa GG.) |
| 2013 NY Slip Op 03888 [106 AD3d 1398] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of Shay-Nah FF., a Child Alleged to beNeglected. Schenectady County Department of Social Services, Respondent; TheresaGG., Appellant. (And Another Related Proceeding.) |
—[*1] Jennifer M. Barnes, Schenectady County Department of Social Services,Schenectady, for respondent. Lara P. Barnett, Schenectady, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Schenectady County (Powers,J.), entered January 23, 2012, which granted petitioner's applications, in two proceedingspursuant to Family Ct Act article 10, to, among other things, adjudicate respondent'schild to be neglected.
Respondent is the mother of three children, the older two of whom were born in2005 and 2006. These older children were removed from respondent's care and, inOctober 2009, she admitted that she had neglected them by failing to seek mental healthtreatment. In December 2010, petitioner removed the youngest child, Shay-Nah FF.(hereinafter the infant), from respondent's custody four days after birth and, shortlythereafter, commenced the first of these proceedings against respondent alleging that theinfant was neglected. Following a hearing in January 2011 (see Family Ct Act§ 1028), Family Court granted petitioner temporary custody of [*2]the infant with unsupervised visitation to respondent,subject to an order of protection that prohibited her from having any other personspresent in her home during visitation. In March 2011, respondent consented to apermanent neglect adjudication with respect to the older children and received asuspended judgment with supervised visitation. Soon thereafter, petitioner commencedthe second of these proceedings alleging that respondent had violated the order ofprotection as to the infant by allowing the infant's father to be present during anunsupervised visit after he was found hiding in the bathroom by a caseworker during anunannounced home visit.
In January 2012, Family Court found that respondent's history of neglect of the olderchildren—which included allegations of excessive corporal punishment, a failureto treat her mental illness, and a failure to provide housing and medical care—putthe infant at imminent risk of harm. Family Court further found that respondent hadfailed to treat her mental illness during her pregnancy with the infant and, significantly,that her mental illness caused her to be inappropriately aggressive with her children.Upon respondent's admission, Family Court also found that she had violated the order ofprotection with respect to the infant. Finding that this conduct constituted derivative anddirect neglect of the infant, Family Court directed that respondent remain underpetitioner's supervision for one year. Respondent now appeals, arguing that there wasinsufficient evidence to support Family Court's finding of neglect, and weaffirm.[FN1]
A charge of neglect must be proven by a preponderance of the evidence showing"that a child's physical, mental or emotional condition was harmed or is in imminentdanger of harm as a result of a failure on the part of the parent to exercise a minimumdegree of care" (Matter ofStevie R. [Arvin R.], 97 AD3d 906, 907 [2012]; see Family Ct Act§ 1012 [f] [i] [B]). Significantly, actual injury is not required to sustain a findingof neglect (see Matter ofLamarcus E. [Jonathan E.], 94 AD3d 1255, 1256 [2012]), and proof of abuse orneglect of one child is admissible to support a finding of neglect against another child(see Family Ct Act § 1046 [a] [i]; Matter of Michael N. [Jason M.], 79 AD3d 1165, 1167[2010]; Matter of VashaunP., 53 AD3d 712, 713 [2008]).
The record demonstrates, among other things, that respondent failed to address theconditions that led to the prior neglect finding regarding the older children, which wasentered upon her admission that she had failed to treat her mental illness. The olderchildren were originally removed from respondent's care because, as a result of heruntreated mental illness, she had poor impulse and anger control, which caused her toinflict excessive corporal punishment on them; in addition, she had failed to provideappropriate medical care, housing and economic support for them. Petitioner's recordsindicate that, prior to their removal, respondent slapped the then two-year-old child in theface, causing injury, and punched the then three-year-old child in the face and back,causing injury. At the time of the within proceedings, 1½ years after the older [*3]children were placed in foster care, they had not beenreturned to respondent.
By the time of the infant's December 2010 birth, respondent had made someprogress, namely, she had secured housing and income and successfully completed aparenting course. However, testimony indicated that she had secured income only in themonth preceding the hearing, owed past-due rent, and was looking for a new apartmentbecause she had a physical altercation with a neighbor, for which respondent wasreferred to anger management classes. The record further indicates that respondentcontinued to be unduly frustrated with the older children and reacted with inappropriateforce and yelling, which was the reason that her visits with them were required to besupervised. Notably, between July 2010 and October 2010, respondent attended only30% of her clinical sessions that were designed to teach her to appropriately disciplineand supervise the older children. Moreover, several months after the infant's birth,respondent consented to an adjudication of permanent neglect with respect to the olderchildren.
Petitioner also presented evidence that respondent did not comply with herprescribed mental health treatment during her pregnancy, and she failed to utilizeprenatal care until the last two months of her pregnancy despite her caseworker'sencouragement to do so (see Matter of Stevie R. [Arvin R.], 97 AD3d at 907;Matter of Xavier II., 58 AD3d 898, 900 [2009]). Respondent, who wasdiagnosed with depressive disorder, post-traumatic stress disorder and bipolardisorder,[FN2] failed to attend her mental health appointments for the last three months of herpregnancy, and she also stopped taking her medications. While respondent claimed thatshe stopped her medications upon the advice of her doctor, her failure to attend hermental health appointments altogether was unexplained and testimony indicated that sheonly engaged in mental health treatment "off and on" prior to her pregnancy.
In our view, Family Court properly noted that respondent's violation of the order ofprotection evidenced impaired parental judgment (see Matter of Xiomara D. [Madelyn D.], 96 AD3d 1239,1241 [2012]; Matter of PaigeAA. [Anthony AA.], 85 AD3d 1213, 1217 [2011], lv denied 17 NY3d708 [2011]). Viewing the record in its totality and according deference to Family Court'scredibility determinations, we conclude that there was a sound and substantial basis forFamily Court's neglect determination (see Matter of Vashaun P., 53 AD3d at713-714; Matter of SuzanneRR., 48 AD3d 920, 922 [2008]; Matter of Landon W., 35 AD3d 1139, 1141 [2006]; Matter of Markus MM., 17AD3d 747, 748-749 [2005]; Matter of Brandon OO., 289 AD2d 721, 722[2001]; Matter of Daequan FF., 243 AD2d 922, 923 [1997]).
Finally, we reject respondent's assertion that she was deprived of meaningfulrepresentation by her counsel's request that Family Court consider postpetition evidenceduring the fact-finding phase. Generally, postpetition evidence is not considered during afact-finding hearing (see Matterof Elijah NN., 66 AD3d 1157, 1159 [2009], lv denied 13 NY3d 715[2010]; Matter of AshleyX., 50 AD3d 1194, 1196 [2008]; Matter of Jessica YY., 258 AD2d 743,747 [1999]). Here, however, respondent's counsel had a legitimate strategy for requestingthat the [*4]court consider postpetition evidence because,at the time of counsel's request, such evidence was entirely favorable to respondent andFamily Court reasonably granted that request. The positive postpetition evidence,although ultimately unavailing, primarily indicated that respondent experienced fewerdifficulties in caring for the infant than she had in caring for the two older children. Itwas not until after Family Court ruled that postpetition evidence would be admissiblethat respondent violated the order of protection. Counsel's request reflected a legitimatetrial strategy at the time it was made, and counsel effectively cross-examined petitioner'switnesses and zealously advocated for increased visitation and the return of the infantthroughout the proceedings (seeMatter of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1043-1044 [2012], lvdenied 20 NY3d 858 [2013]; Matter of Fay GG. [John GG.], 97 AD3d 918, 920-921[2012]). Accordingly, we find that respondent received meaningful representation (see Matter of Brenden O., 20AD3d 722, 723 [2005]).
Rose, J.P., Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although it appears thatthe infant has been returned to respondent's custody and the one-year order ofsupervision has, presumably, expired, respondent's appeal is nonetheless not mootbecause a neglect determination creates " 'a permanent and significant stigma' " that mayadversely affect respondent in future proceedings (Matter of Mahogany Z. [Wayne O.], 72 AD3d 1171, 1172[2010], lv denied 14 NY3d 714 [2010], quoting Matter of Matthew C.,227 AD2d 679, 680 [1996]).
Footnote 2: While there isconflicting evidence in the record regarding whether respondent has been diagnosed withbipolar disorder, both she and her clinician testified that she has bipolar disorder andrespondent testified that she is on medication for bipolar disorder.