| Matter of David II. |
| 2008 NY Slip Op 02705 [49 AD3d 1093] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of David II., a Child Alleged to be Neglected.Columbia County Department of Social Services, Respondent; Tracy II., Appellant. (AndAnother Related Proceeding.) |
—[*1] Kenneth Esrick, Chatham, for Carol II., appellant. James A. Carlucci, Hudson, for respondent. Marlene Moberly, Law Guardian, Freehold.
Spain, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered January 9, 2007, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate the subject child to be neglected.
Respondents are the biological mother and the maternal grandmother of David II. (born in1991). During the relevant time period, respondent Tracy II. (hereinafter the mother), respondentCarol II. (hereinafter the grandmother) and the child resided together in Columbia County. InDecember 2005, the child was temporarily removed from the home and placed in foster care(see Family Ct Act § 1022). Thereafter, petitioner commenced these twoproceedings alleging that respondents neglected the child based on, among other things, thefollowing: (1) the mother permitted the child to attend school in an unclean, disheveled mannerwith his clothing [*2]emanating a foul odor on a daily basis; (2)the grandmother berated and humiliated the child during a meeting at school with his guidancecounselor; and (3) the mother failed to intervene on the child's behalf during that school episode.Following a fact-finding hearing, Family Court found that the mother was responsible for thechild's poor hygiene and the foul odor of his clothes and, despite the problem being repeatedlybrought to her attention, she neglected to adequately address it causing harm and potential harmto the child. The court further found that the grandmother's conduct at the school meeting and themother's failure to intervene on behalf of the child were each neglectful acts. The child wasadjudicated to have been neglected by respondents and placed in petitioner's custody—infoster care—for a period of one year.[FN*]Respondents now appeal.
"[A] party seeking to establish neglect must show, by a preponderance of the evidence(see Family Ct Act § 1046 [b] [i]), first, that a child's physical, mental or emotionalcondition has been impaired or is in imminent danger of becoming impaired and second, that theactual or threatened harm to the child is a consequence of the failure of the parent or caretaker toexercise a minimum degree of care in providing the child with proper supervision orguardianship" (Nicholson vScoppetta, 3 NY3d 357, 368 [2004]; see Family Ct Act § 1012 [f] [i]; Matter of Daniel GG., 17 AD3d722, 722-723 [2005]). Furthermore, "[a] child can be declared to be neglected as a result ofthe failure of the parent to act when the parent knew or should have known of circumstanceswhich required action in order to avoid actual or potential impairment of the child" (Matter of Alaina E., 33 AD3d1084, 1086 [2006]).
Here, one of the child's teachers testified that he emanated a "very bad odor on a fairlyregular basis," which was "strong and foul of urine" and that he often wore the same clothing toschool for an extended length of time. The teacher further stated that the odor was so pronouncedthat she could sometimes smell the child before he even entered the classroom, and that hercolleagues felt constrained to open windows while the child was in their presence. Likewise, thechild's guidance counselor testified that he had at least seven or eight discussions with the motherabout the problem over the two-year period leading up to the petition and that he detected a"strong cat urine odor" on a number of occasions and explained that it was difficult to engage in aconversation with the child due to the "very strong" and unpleasant smell. Moreover, anotherteacher observed that the child frequently arrived at school in an unbathed, disheveled condition,wore unclean clothes and exhibited a pervasive urine smell when he entered a classroom.
The foul odor of his clothing was confirmed in the testimony of a child protective worker.The record also reflects that the child's personal hygiene deficiencies were interfering with hisability to maintain friendships, as his peers would ridicule him and move their desks far awayfrom his to avoid the putrid smell. The child—15 years old at the time—testified asa sworn witness that he was aware of the odor, that there were unsanitary conditions at home andat [*3]a farm where he was expected to clean his grandmother'snumerous cat cages, and that he was embarrassed by his odor. Based on the foregoing, themother's failure to exercise the requisite minimum degree of care with respect to the conditions athome and to the child's personal hygiene—despite her awareness of the problem and thewarnings and concerns communicated to her by school officials—amply supports FamilyCourt's finding of neglect (see Matter of Alaina E., 33 AD3d at 1086; see e.g. Matter of Brian TT., 29 AD3d1228, 1229 [2006]; Matter of Tammie Z., 105 AD2d 463, 464 [1984], affd66 NY2d 1 [1985]).
On our review of the record we conclude, however, that the incident at school during themeeting with the guidance counselor did not rise to the level of neglect by either respondent. Theguidance counselor testified that he arranged a meeting in early November 2005 at which themother was asked to attend and at which the grandmother was also present. The child hadreported that he had bitten into an apple on Halloween night and had cut his mouth on a razorblade. After respondents told the guidance counselor that they did not think the child's story wastrue, the child was called to the guidance counselor's office where the grandmother challengedhim and asked him to open his mouth. When he refused, she accused him of lying and grabbedhis chin and tried to force him to open his mouth. She backed off and he never opened his mouthso as to prove to them that he had been cut by a razor blade. The grandmother then accused himof lying "about everything" and threatened to take him to the police station for a lie detector test.The child testified that all he could remember was that his grandmother yelled at him and"grabbed my chin." Notably, Family Court—as its basis for its finding ofneglect—merely found that the grandmother's conduct was "inappropriate." Inasmuch asthe proof regarding this event does not support an act of neglect by respondents, we cannotaccept the court's findings. This incident was no more than a misguided attempt by thegrandmother to get the child to own up to an apparent lie and discourage his storytelling, a habitrecognized by the court in its findings. As this is the only finding of neglect against thegrandmother, the petition as to her must be dismissed.
Mercure, J.P., Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order ismodified, without costs, by reversing so much thereof as granted petitioner's application withrespect to respondent Carol II.; said petition dismissed; and, as so modified, affirmed.
Footnote *: We find unacceptable the longdelays in making and entering key orders in this case. For example, although this proceeding wascompleted with fact finding and disposition in June 2006, no order was made and entered untilJanuary 2007, when more than six months had elapsed into the child's 12-month placement.