| Matter of Draven I. (Jenlyn I.) |
| 2011 NY Slip Op 05915 [86 AD3d 746] |
| July 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Draven I. and Others, Children Alleged to beNeglected. Montgomery County Department of Social Services, Respondent; Jenlyn I.,Appellant. |
—[*1] Lisa W. Lorman, Amsterdam, for respondent. Samantha H. Miller, Schenectady, attorney for the children.
Mercure, J.P. Appeal from an order of the Family Court of Montgomery County (Cortese, J.),entered August 30, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's children to be neglected.
Petitioner commenced this Family Ct Act article 10 proceeding alleging that respondentneglected her three children (born in 2003, 2006 and 2008) by failing to take her epilepsymedication, which caused the children to be placed in imminent danger of harm on three specificoccasions, and by failing to maintain her home in a safe and sanitary condition. Followingfact-finding and dispositional hearings, Family Court found that petitioner had proven neglect bya preponderance of the evidence and placed respondent under petitioner's supervision for a periodof one year, prompting this appeal.
Respondent first argues that the evidence was insufficient to prove neglect. "[A] partyseeking to establish neglect must show, by a preponderance of the evidence . . . thata child's [*2]physical, mental or emotional condition has beenimpaired or is in imminent danger of becoming impaired . . . [as] a consequence ofthe failure of the parent or caretaker to exercise a minimum degree of care in providing the childwith proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; seeFamily Ct Act § 1012 [f] [i] [B]; § 1046 [b] [i]). Here, Family Court premised itsfinding of neglect, in part, on evidence that respondent operated her automobile with her childrenon board during a period of time when she was not taking medication that had been prescribed toprevent her epileptic seizures. Specifically, an emergency medical technician, a school nurse,respondent's caseworker, and respondent herself testified about three seizures, one of whichoccurred while she was driving and resulted in an accident. While no one was injured in theaccident, respondent was transported to the hospital, leaving her children in the care of anemployee at a nearby bank until a family member could be summoned. According to respondent'scaseworker and a nurse at the Headstart program attended by one of the children, respondent alsodrove her children to school and to daycare after another of the seizures. Although respondentadmitted that she drove her children despite failing to take her medication, that she put them atrisk by doing so, and that the Department of Motor Vehicles required her to be compliant withher medication in order to maintain a driver's license, she blamed her failure to take hermedication on her lack of health insurance. In contrast, the nurse and respondent's caseworkertestified that when they attempted to refer respondent to insurance resources, respondent did nottake the necessary steps to apply. Under these circumstances, we agree with Family Court that apreponderance of the evidence establishes that respondent's conduct placed the children inimminent danger of physical harm (see Matter of Katie R., 251 AD2d 698, 700 [1998],lv denied 92 NY2d 809 [1998]; see also Matter of Christine Y. v Carrion, 75 AD3d 831, 832[2010]).
Family Court's finding of neglect is further supported by evidence establishing the unsanitaryand unsafe condition of respondent's apartment (see Matter of Krista L., 20 AD3d 783, 784-785 [2005]; Matterof Mary S., 279 AD2d 896, 898 [2001]). The testimony of witnesses who entered theapartment, as well as numerous pictures that were admitted into evidence, established that theapartment was cluttered with piles of dirty dishes, mounds of garbage, and food strewn over thefloor. Of greatest concern, numerous plastic bags were left lying around, presenting a real dangerof asphyxiation to the youngest child, who was just 20 months old.
Finally, we reject as meritless respondent's remaining claim that Family Court should haveordered a competency hearing to determine whether she comprehended the nature of theproceedings.
Spain, Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.