| Matter of Austin M. (Dale M.) |
| 2012 NY Slip Op 05476 [97 AD3d 1168] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Austin M. and Another, Infants. Oswego CountyDepartment of Social Services, Appellant. Dale M., Respondent. |
—[*1] The Fix Law Firm, Oswego (Robert H. Fix of counsel), for respondent-respondent. Gloria Flores Baldwin, Attorney for the Children, Baldwinsville, for Austin M. and AnnaM.
Appeal from an order of the Family Court, Oswego County (Kimberly M. Seager, J.), enteredFebruary 3, 2012 in a proceeding pursuant to Family Court Act article 10. The order, insofar asappealed from, denied that part of petitioner's application seeking to remove Anna M. from thecustody of respondent, granted respondent unsupervised visitation with Austin M., anddetermined that petitioner did not make reasonable efforts to prevent the need for removal of thechildren from respondent's care but that the lack of such efforts was appropriate under thecircumstances.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw and the facts without costs, that part of the application seeking removal of the child Anna M.is granted, respondent is granted supervised visitation with the children, and the matter isremitted to Family Court, Oswego County, for further proceedings in accordance with thefollowing memorandum: Petitioner commenced this neglect proceeding against respondent fatherand sought emergency removal of the children, Austin M. and Anna M. Following a hearingpursuant to Family Court Act § 1027, Family Court granted the application with respect toAustin but not Anna, and granted the father unsupervised visitation with Austin. Petitionerappeals, and we now reverse the order insofar as appealed from.
In a hearing held pursuant to Family Court Act § 1027 for the temporary immediateremoval of a child from a home, "if the court finds that removal is necessary to avoid imminentrisk to the child's life or health, it shall remove or continue the removal of the child" (§1027 [b] [i]). The statute further provides that, "[i]n determining whether removal or continuingthe removal of a child is necessary to avoid imminent risk to the child's life or health, the courtshall consider and determine in its order whether continuation in the child's home would becontrary to the best interests of the child" (§ 1027 [b] [ii]). Thus, the court first mustdetermine whether there is imminent risk to the child's life or health and, if there is, the courtmust then determine [*2]whether it is in the best interests of thechild to be removed from the home or whether the risk to the child "can be mitigated byreasonable efforts to avoid removal" (Nicholson v Scoppetta, 3 NY3d 357, 378 [2004]). The court "mustbalance th[e] risk [of serious harm to the child] against the harm removal might bring, and itmust determine factually which course is in the child's best interests" (id.).
Initially, we note that it appears that the court applied a best interests analysis only and didnot first make a determination whether the children were at imminent risk of harm, as required bythe statute. The court removed Austin from the father's home upon determining that it was inAustin's best interests to allow the father time to engage in necessary anger managementservices. Nevertheless, the record is sufficient to enable this Court to make our ownfindings, without the need for remittitur (see generally Matter of Charity A., 38 AD3d 1276, 1276 [2007]).We agree with petitioner that there is a sound and substantial basis in the record for adetermination that Austin was at imminent risk of harm (see generally Matter of Thurston v Skellington, 89 AD3d 1520,1520 [2011]). The evidence at the hearing was overwhelming that the father slapped Austin inthe face with an open hand with such significant force that the child had marks on his face thenext morning. The court's finding that it was not clear who caused the injury to Austin is notsupported by the record. The medical testimony established that an adult caused the injury to thechild, and thus only the father or his girlfriend could have caused the injury inasmuch as theywere the only two adults who were with the child during the relevant time period. While Austinat first stated that his four-year-old sister hit him, he later stated that his father hit him and toldAustin to say that his sister did it. The father initially gave various explanations for the injury,then admitted that he could have inflicted the injury when he "blacked out," and eventuallyadmitted that he did indeed slap the child. The testimony at the hearing further established thatthe father often lost his temper with the children, particularly with Austin, and that Austin hashad prior instances of bruising on him. Indeed, a caseworker for petitioner has seen Austin cowerin the father's presence when the father became angry, and he pleaded with the father not to hithim. We therefore make the requisite determination that Austin was at imminent risk of harm(see generally Nicholson, 3 NY3d at 378) and, as noted, the court has made the requisitedetermination that it was in his best interests to be removed from the home.
With respect to the child Anna, petitioner alleged that Anna was derivatively neglected andalso sought her removal. It is well settled that a finding of derivative neglect is appropriate whena parent " 'demonstrate[s] a fundamental defect in [his or her] understanding of the duties andobligations of parenthood and create[s] an atmosphere detrimental to the physical, mental andemotional well-being of [his or her children]' " (Matter of Derrick C., 52 AD3d 1325, 1326 [2008], lvdenied 11 NY3d 705 [2008]; seeMatter of Darren HH. [Amber HH.], 68 AD3d 1197, 1197-1198 [2009], lvdenied 14 NY3d 703 [2010]). We agree with petitioner that the record establishes that Annawas also at imminent risk of harm and that such risk could not be mitigated by reasonable effortsto avoid removal (see Matter of SerenityS. [Tyesha A.], 89 AD3d 737, 739 [2011]; Matter of Xavier J., 47 AD3d 815, 816 [2008]). While the evidenceat the hearing did not establish that Anna, unlike Austin, sustained any bruising, "[t]he FamilyCourt Act does not require actual injury as a condition precedent to a finding of imminent risk"(Matter of Erick C., 220 AD2d 282, 283 [1995]).
We further agree with petitioner that the court erred in allowing the father to haveunsupervised visitation with Austin. A parent should be granted "reasonable and regularlyscheduled visitation unless the court finds that the child's life or health would be endangeredthereby, but the court may order visitation under the supervision of an employee of a local socialservices department upon a finding that such supervised visitation is in the best interest[s] of thechild" (Family Ct Act § 1030 [c]). The determination whether visitation is appropriate iswithin the sound discretion of the court, and its findings should not be disturbed unless they lacka [*3]sound and substantial basis in the record (see Matter of Vasquez v Barfield, 81AD3d 1398, 1398 [2011]; Matter ofHobb Y., 56 AD3d 998, 999 [2008]). Here, the court's determination granting the fatherunsupervised visitation with Austin lacks a sound and substantial basis in the record. It is not inAustin's best interests to have unsupervised visitation with the father because the recordestablishes that the father is unable to care for the child in a safe manner and there exists thethreat of future harm to Austin. In light of our determination that both Austin and Anna were atimminent risk of harm in the father's supervision and care, we conclude that the father shouldhave supervised visitation with the children.
We also agree with petitioner that the court erred in failing to find that it made reasonableefforts to maintain the children in the father's care, and in instead finding that reasonable effortswere not made, but that the lack of such efforts was appropriate under the circumstances. FamilyCourt Act § 1027 (b) (ii) provides in relevant part that, "[i]n determining whether removalor continuing the removal of a child is necessary to avoid imminent risk to the child's life orhealth, the court shall consider and determine in its order . . . whether reasonableefforts were made . . . to prevent or eliminate the need for removal of the child fromthe home . . . ." In addition, "[i]f the court determines that reasonable efforts toprevent or eliminate the need for removal of the child from the home were not made but that thelack of such efforts was appropriate under the circumstances, the court shall include such afinding" (§ 1027 [b] [iii]). Here, the court's determination that the lack of such efforts wasappropriate under the circumstances was based on its conclusion that, although petitioner had notprovided anger management counseling for the father, petitioner's lack of reasonable efforts to doso was appropriate because anger management services were not identified as being necessaryuntil just prior to removal of the children. That was error, inasmuch as the evidence at the hearingestablished that petitioner had in fact provided the father with numerous services, includingservices that addressed the father's discipline of the children. Indeed, the record establishes that,with respect to the issue of discipline, petitioner provided an intensive family coordinator whomet with the father for seven hours a week and a preventative caseworker who met with himseveral times a month. Petitioner also scheduled a mental health evaluation for the father andprovided him with financial assistance, transportation assistance, emergency food vouchers, andcase work counseling. We therefore conclude that petitioner made reasonable efforts to preventor eliminate the need for removal of the children from the home.
Finally, we agree with petitioner that the court erred in failing to issue an order of protection.At an emergency removal hearing, "the court may, for good cause shown, issue a preliminaryorder of protection" (Family Ct Act § 1027 [c]). At the conclusion of the evidence,petitioner requested an order of protection requiring the father not to use any corporalpunishment, and we agree with petitioner that there was "good cause" for issuing an order ofprotection in this case (id.). We therefore remit the matter to Family Court for theissuance of such an order. Present—Scudder, P.J., Smith, Centra, Sconiers and Martoche,JJ.