| Matter of Tomasa Z. (Julie Z.) |
| 2010 NY Slip Op 07440 [77 AD3d 1102] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tomasa Z., a Child Alleged to be Neglected.Clinton County Department of Social Services, Respondent; Julie Z., Appellant. (Proceeding No.1.) In the Matter of Tomasa Z., a Child Alleged to be Neglected. Clinton County Department ofSocial Services, Respondent; Pedro Z., Appellant. (Proceeding No.2.) |
—[*1]
Cardona, P.J. Appeals from three orders of the Family Court of Clinton County (Lawliss, J.),entered October 27, 2009 and November 13, 2009, which, among other things, grantedpetitioner's applications, in two proceedings pursuant to Family Ct Act article 10, to adjudicaterespondents' child to be neglected.
Respondent Julie Z. (hereinafter the mother) and respondent Pedro Z. (hereinafter the father)are the parents of a daughter (born in 2009), who is the subject of these proceedings. Two daysafter the infant's birth, petitioner removed her from the parents' custody pursuant to Family CtAct § 1024 and secured a temporary removal order placing her in the custody of petitioner.Thereafter, petitioner commenced these separate proceedings against the parents pursuant toFamily Ct Act article 10, alleging that the infant was in imminent danger of being neglected as aresult of the parents' inability to exercise a minimum degree of care for the child. Followingfact-finding and dispositional hearings, Family Court adjudicated the infant to be neglected andordered that she remain in the custody of petitioner. These appeals by the parents ensued.
A party seeking to establish neglect must demonstrate, by a preponderance of the evidence,that the child's "physical, mental or emotional condition has been impaired or is in imminentdanger of becoming impaired as a result of the failure of his [or her] parent . . . toexercise a minimum degree of care . . . in providing the child with propersupervision or guardianship" (Family Ct Act § 1012 [f] [i] [B]; see Nicholson v Scoppetta, 3 NY3d357, 368 [2004]). Here, the record establishes that the mother, who is mildly mentallyretarded, is limited in her cognitive abilities and suffers from, among other things, a seizuredisorder, which causes her to become unaware of her surroundings. Various caseworkers testifiedregarding their observations of the mother and expressed concerns over her inability tosufficiently attend to her own basic needs, including personal hygiene, taking her medication,food preparation and housekeeping. Testimony also established instances wherein argumentsbetween the parents escalated into domestic violence. Despite taking advantage of availableservices and being receptive to and cooperative with the parenting programs offered, the motherstated to a caseworker that she was not ready to take the infant home and that she did not knowwhat to do with her. Moreover, her testimony demonstrated her severely limited understanding ofbasic parenting concepts with regard to an infant.
Turning to the father, he admitted during his testimony that there was domestic violence inthe couple's relationship. Moreover, the father was reluctant to acknowledge that the mothersuffered any limitations other than her seizure disorder. The caseworkers testified that the fatherexpressed his intention to return to work and leave the infant alone with the mother. Furthermore,the father testified to his belief that the mother was capable of adequately caring for the infant.According to his testimony, daycare was required only if the mother continued to have seizures,which he stated she had not experienced in months. In addition, the father's testimony that hewould be able to catch the infant if the mother suffered a seizure further demonstrates his limitedinsight into the nature of the mother's condition and its potential effects on the proper care andsupervision of the infant.
In view of the foregoing, and according deference to Family Court's findings of fact andassessment of credibility (see Matter ofElijah NN., 66 AD3d 1157, 1160 [2009], lv denied 13 NY3d 715 [2010]), thereis a sound and substantial basis in the record to support the court's [*2]finding that the infant was in imminent risk of impairment due tothe parents' inability to provide a minimal degree of care in providing proper supervision of theinfant (see id.; Matter of LashinaP., 52 AD3d 293, 294 [2008]).
We have reviewed the parents' remaining contentions and find them to be without merit.
Mercure, Spain, Lahtinen and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.