| Matter of Alexis AA. (John AA.) |
| 2012 NY Slip Op 00154 [91 AD3d 1073] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Alexis AA. and Others, Children Alleged to beNeglected. Clinton County Department of Social Services Respondent; John AA.,Appellant. |
—[*1] Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent. Omshanti Parnes, Plattsburgh, attorney for the children.
Kavanagh, J. Appeals from three orders of the Family Court of Clinton County (Lawliss, J.),entered February 22, 2011 and March 10, 2011, which partially granted petitioner's application,in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent's children to beneglected.
Respondent and Emily BB. (hereinafter the mother) are the married parents of threechildren—Gabe AA., Noah AA. and Alexis AA. (born in 2008, 2009 and 2010,respectively). In December 2010, petitioner commenced this proceeding alleging that the childrenwere neglected by respondent.[FN1]Following a fact-finding hearing, Family Court concluded that respondent had neglected Gabeand Noah, but dismissed the petition as to Alexis. Following a dispositional [*2]hearing, the court removed Gabe and Noah, placed them withpetitioner, and issued an order of protection prohibiting respondent from having any contact withthem except during authorized periods.[FN2]Respondent now appeals.
To establish neglect, petitioner must prove by a preponderance of the evidence (seeFamily Ct Act § 1046 [b] [1]) that the children's " 'physical, mental or emotional condition[have] been impaired or [are] in imminent danger of becoming impaired as a result of the failureof [respondent] to exercise a minimum degree of care' with regard to food, clothing, shelter,education and medical care or proper guardianship or supervision" (Matter of Alyson J. [Laurie J.], 88AD3d 1201, 1202 [2011], quoting Family Ct Act § 1012 [f] [i]; see Matter of Joseph RR. [Lynn TT.],86 AD3d 723, 724 [2011]). Here, caseworkers testified to numerous instances during whichGabe and Noah sustained significant injuries because respondent failed to properly supervisethem while they were in his care. In that regard, evidence was presented that Noah was leftunattended on a back porch staircase and injured his head when he fell to the concrete slabbelow. The same child was left alone in a room and burned his arm when he came into contactwith an exposed baseboard heating unit. Noah was also found to have numerous bites on hisbody—some severe—all of which had been inflicted by his brother when the twochildren were not properly supervised by respondent. Respondent also permitted both children toeat food that was on the floor of the premises and took no steps to prevent Gabe from hitting hishead on the sidewalk and licking puddles while outside on the street. These incidents, all ofwhich occurred at a time when respondent was charged with the supervision of these childrenand responsible for their care, provide ample support for Family Court's determination that heneglected both children (see Matter ofSamuel DD. [Margaret DD.], 81 AD3d 1120, 1124 [2011]; Matter of Kaleb U. [HeatherV.—Ryan U.], 77 AD3d 1097, 1098-1099 [2010]).
As for Family Court's decision to place Gabe and Noah with petitioner, we note that, inaddition to the evidence establishing respondent's neglect of these children, the familyhome—despite petitioner's ongoing efforts to provide services to respondent and themother—was often littered with garbage and debris and was so unsanitary that it remainedan unsuitable environment for young children (see Matter of Keaghn Y. [Heaven Z.], 84 AD3d 1478, 1478-1479[2011]; Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d at1099-1100).[FN3]While respondent and the mother did attempt, albeit somewhat belatedly, to address theseconditions and remedy them, we agree with Family Court that the record, when viewed in itsentirety, establishes that the children's best interests required that they be placed in petitioner'scustody (see Matter of Elijah Q., 36AD3d 974, 975-976 [2007], lv denied 8 NY3d 809 [2007]).
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: A separate and similarproceeding was commenced against the mother, and resulted in a finding of neglect against her.
Footnote 2: Any issues respondent raisedregarding the order of protection have been abandoned by his failure to address them in his brief(see Matter of Casolo v Casolo, 50AD3d 1196, 1198 n [2008]).
Footnote 3: We reject the contention of theattorney for the children that the appeal from the dispositional order is moot (see Matter of Brandon DD. [JessicaEE.], 74 AD3d 1435, 1437 n 2 [2010]).