| Matter of Joseph MM. (Clifford MM.) |
| 2012 NY Slip Op 00157 [91 AD3d 1077] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Joseph MM., a Child Alleged to be Neglected.Schenectady County Department of Social Services, Respondent; Clifford MM., Appellant.(Proceeding No. 1.) In the Matter of Joseph MM., a Child Alleged to be Neglected. SchenectadyCounty Department of Social Services, Respondent; Nicole MM., Appellant. (Proceeding No.2.) |
—[*1] Sandra M. Colatosti, Albany, for Nicole MM., appellant. Ursula E. Hall, Schenectady County Department of Social Services, Schenectady, forrespondent. Mitch Kessler, Cohoes, attorney for the child.
Stein, J. Appeals from an order of the Family Court of Schenectady County (Clark, J.),entered March 31, 2011, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate respondents' child to be neglected.
At the time these proceedings were commenced, respondent Nicole MM. (hereinafter themother) and respondent Clifford MM. (hereinafter the father) were living together in a supportiveliving arrangement through the Schenectady County Association of Retarded Citizens(hereinafter ARC), a social services organization for persons with mental disabilities.Respondents' son, Joseph MM. (born in 2009), has been diagnosed with multiple neurologicaldeformities and other medical disorders. Immediately following Joseph's birth, while the motherand Joseph were still in the hospital, a report of suspected child abuse and maltreatment wasmade to the Child Protective Services hotline. Thereafter, petitioner commenced these neglectproceedings on the grounds that, among other things, respondents' mental retardation, history ofangry outbursts—including incidents of domestic violence—poor judgment andinability to protect themselves or Joseph render respondents unable to provide a minimum degreeof care for Joseph, particularly given his special needs. In addition, petitioner alleged that thefather's seizure disorder and partial paralysis contribute to his inability to provide a minimumdegree of care. Respondents consented to the removal of Joseph from their care and Joseph wasplaced in the temporary custody of the father's sister. After a fact-finding hearing, Family Courtentered an order finding that respondents had neglected the child, prompting this appeal.
Inasmuch as Family Court's finding of neglect is supported by a sound and substantial basisin the record, we affirm. "[A] party seeking to establish neglect must show, by a preponderanceof the evidence, first, that a child's physical, mental or emotional condition has been impaired oris in imminent danger of becoming impaired and second, that the actual or threatened harm to thechild is a consequence of the failure of the parent . . . to exercise a minimum degreeof care in providing the child with proper supervision or guardianship" (Matter of Anthony TT. [Philip TT.], 80AD3d 901, 902 [2011], lv denied 17 NY3d 704 [2011] [internal quotation marks andcitations omitted]). A child's infirmities and special needs must be accounted for when assessingthe requisite minimum degree of care in determining whether the child has been neglected(see Matter of Sayeh R., 91 NY2d 306, 315 [1997]; Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d 1097,1099 [2010]).
Here, the evidence before Family Court demonstrated that the mother's mild mentalretardation makes it difficult for her to follow through with routine tasks and affects her ability tocare for Joseph. Hospital staff noted the mother's impatience with the child and the need tocontinually refocus, encourage and reassure the mother with regard to tasks involving the child'scare. The notes of the hospital staff also indicated that the mother did not comprehend theseverity of Joseph's medical issues including, among other things, his difficulty feeding, or theconsequences of her disregard for those issues. For example, despite being trained to hold Josephin an upright position during feeding, the mother was observed standing next to his crib holding abottle in his mouth with one hand while he was lying flat and while she was talking on the phone,which she was holding with her other hand. During a visit with Joseph at the home of the child'saunt, the mother dumped the formula out of the child's bottle and denied doing so, [*2]stating that the child had consumed the formula. In the course ofanother such visit, the mother left the child unattended on the couch, further demonstrating herlack of insight into proper infant care and supervision. There was also testimony that the motherneglected her own hygiene, as well as her nutritional health during her pregnancy, and that herself-mutilation and other behavioral disorders—including lack of impulse controlmanifested in anger management issues—created a risk to herself and others.
As to the father, the evidence established that he suffers from mild to moderate mentalretardation, epilepsy, cerebral palsy with hemiparesis and depression, and he has a history ofpersonality disorder. The father's physical disabilities prevent him from assuming the role of thechild's primary caretaker without assistance. In addition, the father's anger management issueshave resulted in outbursts and numerous incidents of domestic violence involving the mother.
Respondents' home was repeatedly observed to be in a state of squalor. Significantly, therewas also testimony that respondents were decreasing their involvement with ARC and serviceproviders—against the advice of ARC personnel—and were increasingly hostiletoward attempts to supervise and/or assist them. Although respondents elicited some favorableevidence through documentation and impeachment of petitioner's witnesses, their failure totestify on their own behalf created "the strongest inference against [them] as the opposingevidence would allow" (Matter of Jared XX., 276 AD2d 980, 983 [2000]).
While evidence of respondents' intellectual disabilities, alone, will not support a finding ofneglect (see Matter of Trina Marie H., 48 NY2d 742, 743 [1979]), said disabilities mayproperly form the basis of such a finding when coupled with other factors tending to showimminent danger to the child's well-being (see Matter of Anthony TT. [Philip TT.], 80AD3d at 902). Here, according proper deference to Family Court's factual and credibilitydeterminations (see Matter of Kasja YY.[Karin B.], 69 AD3d 1258, 1259 [2010], lv denied 14 NY3d 711 [2010]), wefind a sound and substantial basis in the record to support that court's finding that respondents'cognitive impairment, coupled with their lack of judgment and poor impulse control, domesticabuse issues and self-destructive behaviors, resulted in their failure to exercise a minimumdegree of care in providing Joseph with proper supervision or guardianship and that the child'swell-being was in imminent danger of becoming impaired.
The parties' remaining contentions have been considered and, to the extent they are properlybefore us, are determined to be without merit.
Spain, J.P., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.