| Matter of Viveca AA. |
| 2008 NY Slip Op 04009 [51 AD3d 1072] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Viveca AA., a Child Alleged to be Neglected.Commissioner of Social Services of Schenectady County, Respondent; Emily AA.,Appellant. |
—[*1] Christopher H. Gardner, County Attorney, Schenectady (Jennifer M. Barnes of counsel), forrespondent. Patricia L.R. Rodriguez, Law Guardian, Schenectady.
Mercure, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered August 31, 2006, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's child to be neglected.
In November 2005, petitioner commenced this proceeding seeking to have respondent'sdaughter (born in 1998) adjudicated to be neglected. The petition was based upon allegations thatrespondent failed to comply with recommended treatment for her mental illness, withdrew thechild from school and failed to otherwise meet the child's educational needs, and did notmaintain her home in a safe and sanitary condition. The child was removed and placed with hermaternal grandmother. At the conclusion of the fact-finding hearing, Family Court found thechild to be neglected. Following a dispositional hearing, the court ordered that the child remain inthe custody of her maternal grandmother, imposed orders of protection and supervision requiringrespondent to comply with mental health and substance abuse evaluations and [*2]treatment, and directed that "visitation has been suspended until[respondent] complies with this Court's order for treatment." Respondent appeals as of right fromthe fact-finding order (see Family Ct Act § 1112 [a]; Matter of Nathaniel II., 18 AD3d1038, 1038 [2005], lv denied 5 NY3d 707 [2005]), and we now affirm.
"[A] party seeking to establish neglect must show, by a preponderance of the evidence, first,that a child's physical, mental or emotional condition has been impaired or is in imminent dangerof becoming impaired and second, that the actual or threatened harm to the child is aconsequence of the failure of the parent or caretaker to exercise a minimum degree of care inproviding the child with proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004] [citation omitted];see Family Ct Act § 1012 [f] [i]). Here, the record evinces that respondent removedthe child from public school and, although she claimed to be providing the child with homeinstruction, respondent failed to submit adequate "documentation or other credible evidence toshow that [the child] received the required schooling" (Matter of Ember R., 285 AD2d757, 759 [2001], lvs denied 97 NY2d 604 [2001]; see Matter of William AA., 24 AD3d 1125, 1125-1126 [2005],lv denied 6 NY3d 711 [2006]; cf. Matter of Christopher UU., 24 AD3d 1129, 1131 [2005]). Inaddition to this proof of educational neglect, petitioner presented evidence that respondent has along history of mental illness—including six prior psychiatric hospitalizations anddiagnoses of schizoaffective disorder, bipolar disorder, posttraumatic stress disorder, andschizophrenia, paranoid type—but refuses to accept that she has been diagnosed with amental illness, cooperate with treatment, or take medication. In our view, petitioner demonstratedthat respondent's illness rendered her unable to properly care for the child or to maintain herresidence in a sanitary condition, free from safety and fire hazards (see Matter of Harmony S., 22 AD3d972, 973 [2005]; Matter of SenatorNN., 11 AD3d 771, 772-773 [2004]; see also Matter of Jesse DD., 223 AD2d929, 930-932 [1996], lv denied 88 NY2d 803 [1996]). Considering the totality of thecircumstances, we conclude that a sound and substantial basis exists to support Family Court'sfinding of neglect.
Cardona, P.J., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.