| Matter of Rebecca KK. |
| 2008 NY Slip Op 04016 [51 AD3d 1086] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Rebecca KK., a Child Alleged to be Neglected.Cortland County Department of Social Services, Respondent; Sharon PP.,Appellant. |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland, forrespondent. Pamela B. Bleiwas, Law Guradian, Ithaca.
Mercure, J.P. Appeals from two orders of the Family Court of Cortland County (Campbell,J.), entered June 14, 2007, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate respondent's child to be neglected.
Respondent, who is the mother of a daughter (born in 1993), has been under petitioner'ssupervision since 2002. The child had been subjected to long-term sexual abuse by her father andsuffers from enuresis and encopresis, i.e., the inability to control her bladder and bowels,evidently stemming from the abuse.[FN*]The child has also twice been found to have been neglected [*2]by the mother.
Despite petitioner's continued provision of services since 2002, the child has beeninfantilized and has often worn filthy clothing that smelled of urine and feces, and respondent hasbeen unable to keep her residence clean in light of the child's habit of relieving herself on thefloors and furniture. In February 2007, the child was sent home from school because her odorwas allegedly causing others to become ill, and respondent consented to the temporary placementof the child in petitioner's custody. Petitioner then commenced this neglect proceeding and,following a preliminary hearing, Family Court continued the child's placement in foster carepending disposition of this matter. Visitation was suspended when the child began to regress dueto respondent's expressions of anger, threats and inappropriate physical contact with the childduring the visits. Respondent allegedly also threatened to kill various caseworkers and educatorsproviding services.
Following fact-finding and dispositional hearings, Family Court determined that petitionerdemonstrated that the child was neglected and that it would be in her best interest to remain inpetitioner's custody with visitation temporarily suspended. Respondent appeals from both thefact-finding and dispositional orders.
We affirm. "[A] party seeking to establish neglect must show, by a preponderance of theevidence, first, that a child's physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired and second, that the actual or threatened harm to thechild is a consequence of the failure of the parent or caretaker" to supply the child with food,clothing or shelter, or to provide proper supervision or guardianship (Nicholson v Scoppetta, 3 NY3d357, 368 [2004] [citation omitted]; see Family Ct Act § 1012 [f] [i];Matter of Jessica YY., 258 AD2d 743, 744 [1999]). In determining whether there hasbeen a failure to exercise a minimum degree of care, parental behavior must be evaluated"objectively," in light of whether "a reasonable and prudent parent [would] have so acted, orfailed to act, under the circumstances then and there existing" (Nicholson v Scoppetta, 3NY3d at 370).
Contrary to respondent's assertions that the record lacks evidence to support Family Court'sdetermination that the child was neglected, petitioner presented ample proof that respondentfailed to provide the child with adequate clothing, shelter or supervision. The child's school nursedetailed her attempts over approximately five months to help the child cope with her offensivebodily odor, which included strong smells of urine and feces, and arose due to the child's failureto shower, wash her hair, or wear unsoiled clothes to school. In addition, caseworkers and aparent educator testified extensively regarding the stench of human waste in respondent'sapartment, stains on the furniture and the child's mattress, and respondent's resistance to cleaningthe apartment or laundering the child's clothing.
This evidence provided a sound and substantial basis to support Family Court's finding thatthe child was in imminent danger of impairment due to respondent's failure to exercise aminimum degree of care (see Matter ofAiden L., 47 AD3d 1089, 1090-1091 [2008]; Matter of [*3]Krista L., 20 AD3d783, 784-785 [2005]; Matter ofRussell B., 1 AD3d 832, 833 [2003]). Furthermore, in light of the evidence thatrespondent behaved inappropriately during visits, as well as the recommendation of the child'scounselor and testimony regarding the recurrence of the child's enuresis and encopresis aftervisitation due to her fear that she would be returned to respondent's care, we conclude that thetemporary denial of visitation to respondent was " 'based on compelling reasons and substantialevidence that such visitation would be detrimental or harmful to the child's welfare' " (Matter of Victoria X., 34 AD3d1117, 1118 [2006], lv denied 8 NY3d 806 [2007], quoting Matter of SullivanCounty Dept. of Social Servs. v Richard C., 260 AD2d 680, 682 [1999], lv dismissed93 NY2d 958 [1999]; see Matter of Shawn Y., 263 AD2d 687, 688 [1999]; Matter ofKathleen OO., 232 AD2d 784, 786 [1996]). We have considered respondent's remainingargument and conclude that it is lacking in merit.
Peters, Kane, Kavanagh and Stein, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote *: This Court previously affirmed aFamily Court order adjudicating the child to have been severely abused, abused and neglected bythe father, who was sentenced to five years in prison in 2001 after admitting to sexually abusingthe child and pleading guilty to the crime of attempted sodomy in the first degree (Matter of Rebecca KK., 40 AD3d1195 [2007], lv denied 9 NY3d 811 [2007]).