| Matter of Mary YY. (Albert YY.) |
| 2013 NY Slip Op 05016 [108 AD3d 803] |
| July 3, 2013 |
| Appellate Division, Third Department |
| In the Matter of Mary YY., a Child Alleged to beNeglected. St. Lawrence County Department of Social Services, Respondent; AlbertYY., Appellant, et al., Respondent. |
—[*1] David D. Willer, St. Lawrence County Department of Social Services, Canton, forSt. Lawrence County Department of Social Services, respondent. Rosemary R. Philips, Canton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of St. Lawrence County(Morris, J.), entered March 5, 2012, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate respondents' child to beneglected.
Respondent Justa ZZ. (hereinafter the mother) and respondent Albert YY.(hereinafter the father) are the parents of a child (born in January 2011) with a cleftpalate. As the child, who was approximately eight weeks premature, weighed less thanthree pounds at birth, she remained hospitalized for several weeks, during which time herweight steadily improved. Following her discharge to respondents' care, the child initiallycontinued to gain weight. By mid-March 2011, however, the child's weight gain"appeared to be stalling," prompting a referral to an infant feeding and swallowingspecialist, who thereafter evaluated the child, reviewed specific feeding techniques withrespondents and made certain recommendations.[*2]
On April 16, 2011, at the behest of the feedingspecialist, respondents took the child to the emergency department of a hospital inOnondaga County. During the course of the child's medical evaluation, the father refusedcertain laboratory studies, indicating that "[h]e felt that the tests were not necessary andthat he did not want the [child] stuck with [a] needle." The child thereafter was admittedfor treatment for failure to thrive but, before a bed on the pediatric unit could be secured,respondents grew impatient, signed the child out against medical advice and left thehospital. Following intervention by the Onondaga County Department of Social Services,respondents and the child returned to the hospital, whereupon the child once again beganto gain weight.
Petitioner thereafter removed the child from respondents' care and commenced theinstant neglect proceeding alleging, insofar as is relevant here, inadequate supervisionand guardianship—specifically, that respondents failed to provide the child withadequate nutrition and medical care. Following a hearing, Family Court adjudicated thechild to be neglected and placed her in foster care. This appeal by the father ensued.
"The case law makes clear that a child may be adjudicated to be neglected within themeaning of Family Ct Act § 1012 (f) (i) when a parent knew or should haveknown of circumstances which required action in order to avoid actual or potentialimpairment of the child and failed to act accordingly" (Matter of Mary MM., 38AD3d 956, 957 [2007] [internal quotation marks and citation omitted]; accord Matter of Kimberly Z.[Jason Z.], 88 AD3d 1181, 1184-1185 [2011]; see Matter of Stevie R. [ArvinR.], 97 AD3d 906, 907 [2012]). "Determining whether a parent exercised therequisite minimum degree of care is evaluated by asking whether, under thecircumstances, a reasonable and prudent parent [would] have so acted" (Matter of Clayton OO. [NikkiPP.], 101 AD3d 1411, 1411 [2012] [internal quotation marks and citationsomitted]; see Matter of Darcy Y.[Christopher Z.], 103 AD3d 955, 956 [2013]).
Here, the record establishes that the father attended many of the child's pediatricappointments, as well as the evaluation conducted by the feeding and swallowingspecialist, during the course of which medical professionals repeatedly explained that thechild's cleft palate made it difficult for her to feed, stressed the importance of ensuringthat the child was fed consistently and gained weight at a steady rate and offeredinstruction and specific recommendations for different feeding techniques. The recordfurther reflects that the father resided in the same household as the mother and the childduring the relevant time period, thereby evidencing his awareness of the child's needsand the difficulties encountered in providing her with adequate nutrition (see Matter of Dustin B., 24AD3d 1280, 1281 [2005]; cf. Matter of Stevie R. [Arvin R.], 97 AD3d at907-908). Despite such awareness, the father made no attempt to feed the child prior toher placement in foster care, nor did he intervene or otherwise ensure that the child wasreceiving adequate nourishment. Moreover, even when faced with the child's hospitaladmission for failure to thrive in April 2011, the father refused to allow medicalpersonnel to conduct certain diagnostic tests and thereafter left the hospital with thechild—against medical advice and despite being warned of the risks ofdehydration and an inability to feed at home. Finally, the child's discharge summary fromher April 2011 admission reflects that she was able to gain between 70 and 100 grams (orapproximately 2½ to 3½ ounces) per day while she was in the hospital,thereby establishing that the child "was not receiving proper nourishment at home" (Matter of Justin A. [Jesus A.],94 AD3d 575, 575 [2012], lv [*3]denied 19NY3d 807 [2012]).[FN*]Under these circumstances, we find that petitioner established—by apreponderance of the credible evidence (see Matter of Kimberly Z. [Jason Z.], 88AD3d at 1185)—that the father neglected the child by failing to intervene orotherwise ensure that the child was receiving adequate nutrition and medical care (seeMatter of Justin A. [Jesus A.], 94 AD3d at 575; Matter of Joshua Hezekiah B. [Edgar B.], 77 AD3d 441,442 [2010], lv denied 15 NY3d 716 [2010]; Matter of Lorelei M. [Andrew M.], 67 AD3d 1383, 1383[2009]; Matter of Dustin B., 24 AD3d at 1281; Matter of Kayla C., 19 AD3d692, 692-693 [2005]). Accordingly, Family Court's order is affirmed.
Rose, J.P., Spain and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: One of the child'spediatricians testified that the child should be gaining between 10 to 30 grams (orone-third ounce to one ounce) each day. As noted previously, the child's weight gainstalled while in respondents' care.