| Matter of Victoria XX. (Thomas XX.) |
| 2013 NY Slip Op 06749 [110 AD3d 1168] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Victoria XX. and Others, Children Allegedto be Neglected. Schuyler County Department of Social Services et al., Respondents;Thomas XX., Appellant. (Proceeding No. 1.) In the Matter of Victoria XX. and Others,Children Alleged to be Neglected. Schuyler County Department of Social Services et al.,Respondents; Tammy XX., Appellant. (Proceeding No. 2.) |
—[*1] John J. Raspante, Utica, for Tammy XX., Appellant. Kristin Hazlitt, Schuyler County Department of Social Services, Watkins Glen, forSchuyler County Department of Social Services, respondent. Keith I. Cassidy, Tompkins County Department of Social Services, Ithaca, forTompkins County Department of Social Services, respondent. Natalie B. Miner, Homer, attorney for the children. Francisco Berry, Ithaca, attorney for the child. Mark A. Schaeber, Liverpool, attorney for the child.
Garry, J. Appeals from two orders of the Family Courts of Schuyler County andTompkins County (Sherman, J.), entered June 6, 2012 and July 10, 2012, which partiallygranted petitioner's applications, in two proceedings pursuant to Family Ct Act article 10,to adjudicate the subject children to be neglected.
Respondents are the aunt and uncle of a niece (born in 2001) and nephew (born in2003) who had previously been freed for adoption after they were adjudged to bepermanently neglected by their parents (see generally Matter of Shania D. [Peggy E.], 82 AD3d1513 [2011]). In 2009, they were placed by the Family Court of Tompkins County(Sherman, J.) in the custody of respondents, who planned to adopt them. Thereafter, theyresided in Schuyler County with respondents and respondents' three children. In October2011, one of respondents' daughters—then age 16—told a school counselorthat her father (i.e., the uncle) had physically abused her as well as thenephew.[FN1]Following an investigation, petitioner commenced these proceedings in Schuyler Countypursuant to Family Ct Act article 10, alleging that respondents had neglected the niece,nephew, the daughter and another of respondents' children.
In January 2012, the attorney for the niece and nephew moved in the Family Court ofTompkins County (Sherman, J.) to modify the prior existing permanency plan byreturning the niece and nephew to the custody of the Tompkins County Department ofSocial Services (hereinafter Tompkins DSS). The motion was granted, and the niece andnephew were removed from respondents' care and placed with foster parents. Thereafter,the Tompkins County permanency proceedings and the Schuyler County neglectproceedings were consolidated to be heard in Schuyler County. Following a fact-findinghearing, the court concluded that [*2]respondents hadneglected the nephew only, and transferred the proceedings to Tompkins County fordisposition. Family Court conducted a hearing and then ordered the nephew to be placedin the custody and guardianship of Tompkins DSS pending placement for adoption.Respondents appeal.
Contrary to respondents' claim, a hearing was not required relative to the January2012 motion to remove the niece and nephew from their custody. Family Ct Act §1027 did not apply, as the motion was not made as part of the Family Ct Act article 10neglect proceedings in Schuyler County, but instead as part of the original permanentneglect proceedings in the Family Court of Tompkins County, pursuant to SocialServices Law § 384-b and Family Ct Act, article 6, part 1. Where, as here, a childis placed with a relative in such proceedings, Family Court "retain[s] continuingjurisdiction over the parties and the child and may . . . modify or extend itsorder, if the . . . relative fails to institute a proceeding for the adoption ofthe child within six months after the entry of the order" (Social Services Law §384-b [3] [a]). The 2009 orders by which the niece and nephew were placed withrespondents provided that adoption proceedings would be filed within six months, but nosuch proceedings had been commenced at the time of the January 2012 motion.Respondents contend that this delay was explained in part by an appeal in the permanentneglect proceedings—resolved in March 2011—and that adoption paperswere being prepared by their attorney when the January 2012 motion was made.Nonetheless, no hearing was required, and the Family Court of Tompkins County did noterr in exercising its continuing jurisdiction to modify the placement of the niece andnephew.
Respondents next contend that the record does not support the conclusion that theyneglected the nephew. Whether a parent or caretaker has neglected a child by failing toexercise the requisite "minimum degree of care" (Family Ct Act 1012 [f] [i] [B]) dependsupon whether "a reasonable and prudent parent [would] have so acted, or failed to act,under the circumstances then and there existing . . . tak[ing] into accountthe special vulnerabilities of the child" (Nicholson v Scoppetta, 3 NY3d 357, 370 [2004] [citationomitted]; see Matter of Izayah J.[Jose I.], 104 AD3d 1107, 1109 [2013]; Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d1097, 1098-1099 [2010]). Failure to respond appropriately to a child's special needsmay constitute neglect "even when those needs may not seriously implicate generalphysical health" (Matter of Sayeh R., 91 NY2d 306, 315 [1997]). Here, thenephew was diagnosed with posttraumatic stress disorder and pervasive developmentdisorder, and was enrolled in a special education program. His treating psychotherapisttestified that his disorders are characterized by hypervigilance, overreactivity and motor,verbal and emotional delays. The nephew, who was described by the psychotherapist andhis teacher as "emotionally fragile," had frequent violent tantrums during which he brokeand threw things and hit and kicked people.
Family Court based the determination that respondents had neglected the nephewupon their inappropriate methods of discipline. Several witnesses testified that they weretold by the nephew and other children in the household that respondents had punishedthe nephew by, among other things, restraining him for extended periods, spanking him,forcing him into cold showers and binding his hands and mouth with duct tape. Acaseworker testified regarding the nephew's description of specific punishments imposed,including taping his hands together and striking him with a belt. Both the niece andnephew stated that the uncle had slapped the nephew and described his spankings as"hard." The nephew's teacher and his psychotherapist testified that the nephew had madesimilar statements to them. The psychotherapist asserted that respondents' disciplinarymethods would have adverse effects on a child with posttraumatic stress disorder andpervasive development disorder because "it would exacerbate the trauma that's [*3]already there" and confuse the child with regard to theappropriateness of violence. The uncle acknowledged using some of these forms ofdiscipline, but denied the severity and explained that the purpose was therapeutic ratherthan punitive; for example, the showers were intended to help the nephew calm downafter tantrums, using cool rather than cold water, and the tape was used only once on thechild's hands to cure a wart. However, this Court defers to Family Court's resolution ofcredibility issues (see e.g.Matter of Loraida R. [Lori S.], 97 AD3d 925, 927 [2012]) and, here, the courtfound that the nephew had "reasonably perceived" the uncle's actions as severepunishments that—given his age and limitations—he could not understand.The court concluded that the nephew had suffered resulting emotional damage(see Family Ct Act § 1012 [f] [1] [B]).
Additional testimony revealed that respondents failed to fully understand oracknowledge the nephew's special needs. The psychotherapist testified that respondentswere not receptive to her suggestion that the nephew needed a higher level of services,and his teacher testified that they turned down an offer to transfer him into a differenteducational program because they did not feel he needed it. The uncle testified that theydid not believe the recommended services were "relevant" to the nephew, and furtherstated that he was uncomfortable with the nephew's diagnoses because, in the uncle'sview, he was simply "a child that needed extra attention." We note that there wastestimony favorable to respondents—for example, the nephew's teacher describedthem as concerned and caring, stating that they communicated regularly with her, showedaffection for the nephew and were responsive to her concerns. Nonetheless, we find asound and substantial basis in the record for a finding of neglect based upon respondents'use of inappropriately severe disciplinary measures and their lack of insight regarding hisspecial needs and disorders, causing imminent danger to his emotional and mental health(see Matter of Izayah J. [Jose I.], 104 AD3d at 1110; Matter of Syles DD. [FeliciaDD.], 91 AD3d 1054, 1057 [2012], lv denied 18 NY3d 810 [2012]).
The uncle next contends that Family Court erred by failing to return the nephew tohis care following the dispositional hearing.[FN2]The primary concern in such a hearing is the best interests of the child, an inquiry that"involves consideration of the parent's ability to supervise the child and any potentialthreat of future abuse or neglect" (Matter of Kathleen OO., 232 AD2d 784, 786[1996]; accord Matter of HobbY., 56 AD3d 998, 999 [2008]). An adoption worker for Tompkins DSS testifiedthat the nephew had been hospitalized shortly after his placement with the foster familyas the result of a violent outburst and, at the time of the hearing, he was still residing in apsychiatric center. The worker described him as "a very troubled little boy" who was"struggling," and she testified that she believed it was in his best interests to remain at thepsychiatric center for continued treatment. While the uncle testified that he recognizedthe nephew's need for treatment and was willing to facilitate any necessary care, theevidence of the worsening of the nephew's symptoms, combined with the uncle'sprevious inappropriate responses to his needs, supports the court's determination thatcontinued placement in petitioner's custody was in the nephew's best interests (see Matter of Gloria DD. [BrendaDD.], 99 AD3d 1044, 1045-1046 [2012]; Matter of Amber VV., 22 AD3d 967, 968-969 [2005],lv denied 6 NY3d 708 [2006]).[FN3][*4]
Finally, the uncle contends that Family Courterred by failing to return the niece to his care. However, the orders appealed from inthese proceedings made no provisions for the niece, who was not adjudicated to beneglected and who was removed from respondents' custody pursuant to an order in thepermanent neglect proceedings from which no appeal was taken. In any event, it appearsthat the niece's adoption by the foster parents has been finalized during the pendency ofthis appeal, thus rendering this aspect of the matter moot (see Matter of Karlee JJ. [JessicaJJ.], 105 AD3d 1304, 1305 [2013]).
Peters, P.J., Rose and Lahtinen, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: The daughter laterrecanted these allegations, and Family Court's ultimate determinations were based on thetestimony of other witnesses.
Footnote 2: The aunt did not raisethis issue on appeal.
Footnote 3: The uncle lacksstanding to seek visitation (see Family Ct Act § 1081; Domestic RelationsLaw §§ 71, 72; Matter of Katrina E., 223 AD2d 363, 363-364[1996], lv denied 88 NY2d 809 [1996]; Matter of David M. v Lisa M.,207 AD2d 623, 624 [1994]); we are thus unable to grant his request for such relief,despite noting that it might in fact be in the child's best interests to be allowed to retainsome contact with his family.