| Matter of Clayton OO. (Nikki PP.) |
| 2012 NY Slip Op 08846 [101 AD3d 1411] |
| December 20, 2012 |
| Appellate Division, Third Department |
| In the Matter of Clayton OO. and Another, Children Alleged to beNeglected. Saratoga County Department of Social Services, Appellant; Nikki PP.,Respondent. |
—[*1] Justin C. Brusgul, Voorheesville, for respondent. Patricia Bianchini, Round Lake, attorney for the child. Heather Corey-Mongue, Ballston Spa, attorney for the child.
Lahtinen, J. Appeal from an order of the Family Court of Saratoga County (Hall, J.), enteredJanuary 24, 2012, which dismissed petitioner's application, in a proceeding pursuant to Family CtAct article 10, to adjudicate respondent's children to be neglected.
Petitioner commenced this proceeding alleging that respondent neglected her son, ClaytonOO. (born in 1996), and derivatively neglected her daughter, Ariel NN. (born in 2002). Prior tothe proceeding, Ariel had resided primarily with respondent, whereas Clayton had resided atvarious times with, among others, respondent, his father (now deceased) and an older half brother(now deceased) and in foster care. He was in foster care at the time of the hearing and reportedlywas doing well in that situation. Respondent made clear to petitioner prior to the proceeding thatshe did not want Clayton residing with her. She reiterated this position during [*2]the hearing and further indicated through counsel that she wouldexecute a judicial surrender so that Clayton could be adopted. Family Court nonetheless found,following the hearing, that the children were not neglected and dismissed the petition. Petitionerappeals.
We reverse as to Clayton. Neglect is established when the preponderance of the evidenceshows "that the child's physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired as a result of the failure of his [or her] parent. . . to exercise a minimum degree of care . . . in providing the childwith proper supervision or guardianship" (Matter of Tomasa Z. [Julie Z.], 77 AD3d 1102, 1102 [2010][internal quotation marks and citation omitted]; see Matter of Afton C. [James C.], 17 NY3d 1, 9 [2011]).Determining whether a parent exercised the requisite minimum degree of care "is evaluated byasking whether, under the circumstances, 'a reasonable and prudent parent [would] have so acted'" (Matter of Lamarcus E. [JonathanE.], 94 AD3d 1255, 1256 [2012], quoting Nicholson v Scoppetta, 3 NY3d 357, 370 [2004]).
Respondent testified that, after a series of disciplinary problems with Clayton, she directedhim to go live with somebody else. He went to live with a half brother and then resided indeplorable conditions in a motel with his seriously ill father. Respondent refused efforts bypetitioner to return Clayton to her home and he ended up in foster care. At that time, she wascapable of providing a place for Clayton to live and had displayed adequate parenting skills withrespect to Ariel. As to Clayton, however, respondent acknowledged telling petitioner that hecould not stay with her and he was better off in foster care. Rather than work with petitioner on aplan for Clayton, respondent offered to voluntarily surrender her parental rights.
The record reveals that respondent is not willing to make any reasonable effort to work withpetitioner regarding Clayton. Instead, when he was in imminent danger due to unavailablehousing, she abdicated any responsibility and intended to rely entirely on foster care. Whenpressed to make plans or exert parental efforts for the child, she opted to offer to surrender herparental rights. Under such circumstances, respondent did not act as a reasonable and prudentparent, and the record establishes that Clayton was a neglected child (see Matter of LamarcusE. [Jonathan E.], 94 AD3d at 1256-1257; Matter of Nyia L. [Egipcia E.C.], 88 AD3d 882, 883 [2011];Matter of Chantel ZZ., 279 AD2d 669, 671-672 [2001]). The fact that the child haddisciplinary problems and respondent had initially sought assistance does not foreclose a findingof neglect where the parent thereafter refuses to act reasonably or to cooperate in efforts ataddressing the child's problems.
We agree with Family Court, however, that this record did not establish derivative neglect ofAriel (see generally Matter of BenjaminVV. [Larry VV.], 92 AD3d 1107, 1109 [2012]). We note that, in any event, the attorneyfor Ariel states in her brief that Ariel is now living with another family as a result of a placementmade in a subsequent Family Ct Act article 10 proceeding involving direct—rather thanderivative—neglect.
Rose, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as dismissed the petition as to ClaytonOO.; petition granted as to said child and matter [*3]remitted tothe Family Court of Saratoga County for a dispositional hearing; and, as so modified, affirmed.