| Matter of Elijah NN. |
| 2009 NY Slip Op 07537 [66 AD3d 1157] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Elijah NN., a Child Alleged to be Neglected.Delaware County Department of Social Services, Respondent; Lynett NN.,Appellant. |
—[*1] Richard B. Spinney, County Attorney, Delhi (Amy B. Merklen of counsel), for respondent. Lucy Gold, Law Guardian, Ithaca.
Garry, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredJuly 30, 2008, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, to adjudicate respondent's child to be neglected.
The child who is the subject of this proceeding was born to respondent in December 2007.Respondent suffers from physical limitations, cognitive difficulties and memory problemsresulting from multiple sclerosis, a seizure disorder, and a brain injury. Before and during thepregnancy, petitioner assisted her with scheduling, transportation and managing her medicationsthrough its Adult Protective Services and Public Health Nursing divisions. In addition, petitionermanaged respondent's finances as her representative payee after allegedly learning that shehabitually spent her monthly Social Security benefits within days of receiving them on suchpurchases as marihuana and cigarettes. During respondent's pregnancy, she allegedly testedpositive for marihuana. In addition, she did not have a stable living situation, moving frequentlybefore and during her pregnancy. One day after the child was born, petitioner commenced this[*2]proceeding seeking a determination pursuant to Family CtAct article 10 that he was neglected on the ground that respondent's limited physical andcognitive functioning and her continued high-risk behaviors hindered her ability to care for himsafely and appropriately.
After a hearing pursuant to Family Ct Act § 1027, respondent and the child wereplaced together in a foster home. Shortly thereafter, petitioner moved by order to show cause tohave the child placed in its custody. With respondent's consent, the child was placed in fostercare pending the disposition of this proceeding. After a fact-finding hearing in April 2008,Family Court determined the child to have been neglected. A dispositional hearing followed inJuly 2008, after which the court continued the child's placement in foster care with a permanencygoal of returning him to respondent's custody. Respondent now appeals.
Respondent first contends that Family Court improperly considered postpetition evidenceduring the fact-finding hearing, consisting of the testimony of the foster mother—whotemporarily housed respondent and her child after the child's birth—as to respondent'sbehavior, memory lapses, and parenting skills during that period. The court also considered aChild Protective Services summary investigative report addressing events that took place bothbefore and after the petition was filed. "In general, postpetition evidence should not beconsidered during a fact-finding hearing" (Matter of Ashley X., 50 AD3d 1194, 1196 [2008] [citationomitted]), although such evidence may be admitted for impeachment purposes when therespondent is given sufficient notice to avoid surprise or prejudice (see id.; Matter of Jewle I., 44 AD3d 1105,1107 [2007]). Here, upon the objection of respondent's counsel, the court ruled that it wouldconsider postpetition evidence to the extent that it was admitted to prove respondent'simpairments existing at the time the petition was filed. Thus, the evidence was admitted "toprove . . . factual matters" and not for the purpose of impeachment (Matter ofAshley X., 50 AD3d at 1196). Further, petitioner did not move to conform the petition'spleadings to the proof except with regard to the child's date of birth, nor did it file any additionalpetitions (see Matter of Jessica YY., 258 AD2d 743, 747 [1999]; Matter of SaraX., 122 AD2d 795, 797 [1986], appeal dismissed 69 NY2d 707 [1986]). Althoughthe evidence of respondent's parenting abilities would properly have been considered fordispositional purposes (see Matter of Darlene T., 28 NY2d 391, 396 [1971]), it shouldnot have been considered at the fact-finding hearing.
Respondent contends that in the absence of the postpetition evidence, the remainingevidence was insufficient to support Family Court's determination of neglect. A neglected child,as defined by statute, specifically includes one "whose physical, mental or emotional conditionhas been impaired or is in imminent danger of becoming impaired" (Family Ct Act§ 1012 [f] [i] [B] [emphasis added]). In determining whether a child is in actual orimminent danger of impairment, the court must "focus on serious harm or potential harm to thechild, not just on what might be deemed undesirable parental behavior" (Nicholson v Scoppetta, 3 NY3d357, 369 [2004]). Further, the parent's failure to "exercise a minimum degree of care"(Family Ct Act § 1012 [f] [i] [B]) "must be actual, not threatened" (Nicholson vScoppetta, 3 NY3d at 370). "Actual injury or impairment need not be found, as long as apreponderance of the evidence establishes that the child is in imminent danger of either injury orimpairment" (Matter of Katie R., 251 AD2d 698, 699 [1998], lv denied 92 NY2d809 [1998] [internal quotation marks and citations omitted]; accord Matter of Markus MM., 17 AD3d 747, 748 [2005]).
The prepetition evidence was sufficient to support the finding of neglect. While respondent'suse of marihuana during her pregnancy, standing alone, would not have been sufficient (seeMatter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79[*3][1995]; Matter of Markus MM., 17 AD3d at 748), thetestimony of several social services providers amply demonstrated the severe impact ofrespondent's cognitive deficits and memory problems on her ability to exercise a "minimumdegree of care" (Family Ct Act § 1012 [f] [i] [B]) for her child and even for herself. Therewas testimony that, even with frequent reminders, respondent regularly forgot her medicalappointments and could not manage her regimen of medications without the assistance of apublic health nurse. Even with this assistance, she had difficulty remembering to take hermedications on time, resulting in at least one seizure during her pregnancy caused by amedication error. She could not manage her finances without assistance and could not maintainstable housing, moving at least four times during her pregnancy and choosing not to stay in anappropriate adult home located for her by petitioner some weeks before the child's birth. Therewas evidence that her mother's home, where she was living when the petition was filed, wasunsuitable because of, among other things, the mother's alleged alcohol abuse and a volatilemother-daughter relationship that included physical altercations. A psychologist who evaluatedrespondent testified that she had a borderline IQ and an extremely low ability to retain and storememory. He opined that respondent's cognitive and memory limitations would prevent her frombeing able to care for a child without the consistent presence and involvement of another person.Finally, respondent herself testified that, although she wanted her child, she could not care forhim without assistance. Giving "great deference" to the court's determination (Matter of Mary Kate VV., 59 AD3d873, 875 [2009], lv denied 12 NY3d 711 [2009]), we find that a preponderance ofthe evidence established that the child was neglected within the meaning of the statute.
Rose, J.P., Kane, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.