| Matter of Ariel P. (Lisa W.) |
| 2013 NY Slip Op 00213 [102 AD3d 795] |
| January 16, 2013 |
| Appellate Division, Second Department |
| In the Matter of Ariel P., an Infant. Administration forChildren's Services, Respondent; Lisa W., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Diana Lawless of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel),attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the motherappeals, as limited by her brief, from so much of an order of fact-finding and dispositionof the Family Court, Queens County (Salinitro, J.), dated November 22, 2011, as, after ahearing, found that she neglected the subject child.
Ordered that the order of fact-finding and disposition is reversed insofar as appealedfrom, on the facts, without costs or disbursements, the petition is denied, and theproceeding is dismissed.
The Family Court entered a finding of neglect based on the mother's failure "tocooperate with medical personnel to provide necessary medical care for the child'sdiagnosed mental illness."
To establish neglect based upon a parent's failure to provide adequate medical care, apetitioner must prove, by a preponderance of the evidence, that the child's physical,mental, or emotional condition has been impaired, or is in imminent danger of becomingimpaired, and that the actual or threatened harm to the child is due to the failure of theparent or caretaker to exercise a minimum degree of care in supplying the child withadequate medical care though financially able to do so (see Family Ct Act§ 1012 [f] [i] [A]; § 1046; Matter of Alanie H., 83 AD3d 1066 [2011]; see also Matter of ShawndelM., 33 AD3d 1006 [2006]; Matter of Faridah W., 180 AD2d 451[1992]).
A parent's unwillingness to follow a recommended course of psychiatric treatmentwhich results in the impairment of a child's emotional health may support a finding ofneglect (see Matter of TerrenceP., 38 AD3d 254 [2007]; Matter of Felicia D., 263 AD2d 399 [1999]).However, "in the context of medical neglect, the court's role is not as surrogate parentand the inquiry is not posed in absolute terms of whether the parent has made the 'right'or 'wrong' decision" (Nicholsonv [*2]Scoppetta, 3 NY3d 357, 370 [2004],quoting Matter of Hofbauer, 47 NY2d 648, 656 [1979]). Rather, the court, indeciding whether a parent has been neglectful in depriving his or her child of adequatemedical care, must determine whether the parent has provided an acceptable course oftreatment in light of all the surrounding circumstances (see Matter of Hofbauer,47 NY2d at 656).
Here, it was not established by a preponderance of the evidence that the motherfailed to provide an acceptable course of treatment. There was no evidence that themother's concerns regarding the medication recommended by the child's doctors, and herpreference that the child be discharged to a private hospital, were anything butreasonable and appropriate (see Matter of Hofbauer, 47 NY2d 648 [1979]; Matter of Terrence P., 38AD3d 254 [2007]). Moreover, the evidence did not establish that the child'sphysical, mental, or emotional condition was, or was in imminent danger of becoming,impaired as a result of the mother's failure to cooperate with medical treatment (see Matter of Alanie H., 83AD3d 1066 [2011]; Matter of Felicia D., 263 AD2d 399 [1999]; cf. Matter of Alexander L. [AndreaL.], 99 AD3d 599 [2012]).
In light of our determination, the mother's remaining contention has been renderedacademic. Mastro, J.P., Lott, Austin and Sgroi, JJ., concur.