| Matter of Josephine BB. (Rosetta BB.) |
| 2014 NY Slip Op 01358 [114 AD3d 1096] |
| February 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Josephine BB., a Child Alleged to beNeglected. Attorney for the Child, Respondent; Rosetta BB., Appellant. (And Two OtherRelated Proceedings.) |
—[*1] Mitchell S. Kessler, Cohoes, attorney for the child, respondent.
Stein, J. Appeal from an order of the Family Court of Schenectady County (Powers,J.), entered July 3, 2012, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 10, to adjudicate respondent's child to be neglected.
Respondent (hereinafter the mother) and Joseph DD. (hereinafter the father) are theunmarried parents of Josephine BB. (born in 2008), who resided with the mother fromher birth. In late 2010, the parties each filed a petition for sole custody and, in January2011, Family Court (Taub, J.H.O.) issued a temporary order awarding them joint legalcustody, with the mother retaining primary physical custody. At that time, there was anopen investigation by the Schenectady County Department of Social Services as a resultof a hotline report against the mother regarding allegations that she failed to adequatelyaddress the child's medical and dental needs. In February 2011, based on a report by theDepartment of Social Services (see Family Ct Act § 1034), Family Courtmodified the temporary custody order to award physical custody to the father, withsupervised visitation to the mother.
Shortly thereafter, with Family Court's permission, petitioner—the attorney forthe child[*2]—commenced this proceeding on thechild's behalf (see Family Ct Act § 1032 [b]), alleging that the motherneglected the child by, among other things, failing to address the child's pronounceddental issues and a possible speech delay and by refusing to cooperate with the child'smedical and nutritional professionals, resulting in the child being dangerouslyunderweight. In an amended petition, it was further alleged that, among other things, themother had severely limited the child's food intake under the pretext of food allergies, buthad failed to seek treatment by an allergist, and that the mother suffered frompsychological problems that caused her to refuse recommended medical interventions forthe child. After a prolonged fact-finding hearing, Family Court (Powers, J.) made afinding of neglect[FN1] based on the mother's failure to follow the recommendations of the child's medicalproviders, as a result of which the child was significantly underweight and at risk offailure to thrive. Upon the mother's appeal, we now affirm.
To establish neglect, a petitioner must demonstrate, by a preponderance of theevidence, that the child's physical, mental or emotional condition has been impaired or isin imminent danger of becoming impaired due to the failure of the parent or caretaker toexercise a minimum degree of care (see Family Ct Act §§ 1012 [f][i]; 1046 [b] [i]; Nicholson vScoppetta, 3 NY3d 357, 368 [2004]; Matter of Lydia DD. [Khalil P.], 110 AD3d 1399, 1400[2013]; Matter of Izayah J. [JoseI.], 104 AD3d 1107, 1108 [2013]). In determining the minimum degree of care,courts must objectively evaluate parental behavior in terms of whether "a reasonable andprudent parent [would] have so acted, or failed to act, under the circumstances then andthere existing" (Nicholson v Scoppetta, 3 NY3d at 370; see Matter of Mary YY. [AlbertYY.], 108 AD3d 803, 804 [2013], lv denied 21 NY3d 865 [2013]; Matter of Clayton OO. [NikkiPP.], 101 AD3d 1411, 1411 [2012]; Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120,1122 [2011]). On this basis, a failure to provide adequate medical care and/or followthrough with necessary medical treatment constitutes neglect (see Family Ct Act§ 1012 [f] [i] [A]; Matter of Mary YY. [Albert YY.], 108 AD3d at 805;Matter of Samuel DD. [Margaret DD.], 81 AD3d at 1124).
There is a sound and substantial basis in the record before us to support FamilyCourt's determination that the mother's refusal to follow the recommendations of thechild's treating pediatrician constituted neglect (see Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d1398, 1401 [2013], lv denied 21 NY3d 863 [2013]; Matter of SamuelDD. [Margaret DD.], 81 AD3d at 1124). John Petrillo, the child's pediatrician,testified that the child was seen by a physician in his office within a week of her birth,when her weight fell in the 25th percentile on the growth chart. The child was not seenagain by that pediatric office until one year later, by which time the child had missedmultiple routine checkups and required vaccinations. The child then weighed only 15pounds, 12.4 ounces, placing her significantly below normal growth and developmentlevels. During that visit, Petrillo conveyed his concerns about the child's growth to themother, who claimed that the child had allergies to various foods, including milk. Themother returned the child to Petrillo in January 2010 and, because the child remainedbelow the growth chart, [*3]Petrillo recommendedrechallenging her with milk protein. The mother continued to express concerns aboutpotential food allergies—for which the child had not been tested or examined byan allergist—and to restrict the child's diet, without any direction by Petrillo to doso.[FN2]
The mother thereafter missed various scheduled appointments with Petrillo, whonext saw the child eight months later in August 2010. At that time, the child had gainedonly approximately three pounds and remained well below the growth chart. At aDecember 2010 appointment, the child had only gained one additional pound, promptingPetrillo to refer the child to a nutritionist. Although Petrillo testified that the mother wasgenerally cooperative with the nutritionist, the mother discontinued bringing the child tothis nutritionist, allegedly because the mother distrusted her.
Petrillo next saw the child in January 2011, a month before the father was awardedtemporary custody. At that time, the child weighed less than she had the previous month.Petrillo then referred the child to an allergist because she was not consuming enoughcalories to enable her to gain sufficient weight. Petrillo explained that his primaryconcern was failure to thrive which, if left untreated, could endanger the child's growthand development, including "brain development, neurological development andsubsequent cognitive development."
The child's medical records indicate that, although the mother brought the child to anallergist in January 2011, she would not agree to the recommended testing procedures,which were ultimately performed when the child was placed in the father's custody. As aresult of the child's low weight, as well as the fact that the mother had missed multipleappointments (a total of six between August 2010 and January 2011) and was notfollowing through with medical recommendations, Petrillo was concerned about thechild's welfare and planned on filing a report with the State Central Registry. However,when he next saw the child in March 2011, after she had been in the father's care forapproximately one month, the child had gained three pounds and was on the growth chartfor the first time since her birth.[FN3] In our view, the foregoing supports a finding that the mother failed to provide the childwith proper nourishment and medical treatment, as a result of which the child's physicalcondition was in imminent danger of becoming impaired (see Matter of Mary YY.[Albert YY.], 108 AD3d at 804).
Additionally, the evidence established that the mother had psychological issues thatplaced the child in imminent danger. "While evidence of mental illness, alone, does notsupport [*4]a finding of neglect, such evidence may bepart of a neglect determination when the proof further demonstrates that a respondent'scondition creates an imminent risk of physical, mental or emotional harm to a child" (Matter of Anthony TT. [PhilipTT.], 80 AD3d 901, 902 [2011], lv denied 17 NY3d 704 [2011][internal quotation marks and citation omitted]; see Matter of Henry W., 30 AD3d 695, 696 [2006];Matter of Jesse DD., 223 AD2d 929, 930-931 [1996], lv denied 88 NY2d803 [1996]; Matter of Madeline R., 214 AD2d 445, 446 [1995]). Here, DavidHorenstein, a clinical psychologist who evaluated the mother in connection with thehotline report, testified that the mother has, among other things, a very significantpersonality disorder that results in her "see[ing] herself [in] a very special almostgrandiose manner . . . and everybody else is at fault, everybody else iswrong and everybody else is to blame."
In general, while the record reflects that the mother took some steps to address thechild's medical issues, it is evident that the mother would only follow therecommendations of the medical professionals with whom she agreed. The mother'sbehavior with respect to the child's pediatrician, dentist,[FN4] nutritionist and allergist establishes her rejection of their recommendations and reflects ageneralized conception that only she knew what was best for the child, which wasconsistent with Horenstein's analysis. The mother's attitude and conduct resulted in thechild being denied necessary medical treatment for her low weight and inadequatenutrition and placed her at risk of failing to thrive, with its attendant dangers. The factthat she had not yet suffered from the potential consequences of her conditions is notdeterminative (see Matter ofJoseph RR. [Lynn TT.], 86 AD3d 723, 724 [2011]) because—accordingto Petrillo's testimony—the child was in imminent danger of those consequencesabsent appropriate intervention. Thus, viewing the evidence in its entirety and accordingproper deference to Family Court's credibility determinations (see Matter of Alisia M. [SeanM.], 110 AD3d 1186, 1187-1188 [2013]; Matter of Shay-Nah FF. [TheresaGG.], 106 AD3d at 1401; Matter of Stevie R. [Arvin R.], 97 AD3d 906, 907 [2012]),we find that petitioner proved by a preponderance of the evidence that the child'swell-being was in imminent danger of becoming impaired as a result of the mother'sfailure to exercise a minimum degree of care (see Matter of Mary YY. [AlbertYY.], 108 AD3d at 803; Matter of Izayah J. [Jose I.], 104 AD3d at 1109; Matter of Justin A. [Jesus A.],94 AD3d 575, 575 [2012], lv denied 19 NY3d 807 [2012]), and we discernno basis upon which to disturb Family Court's finding of neglect.
Finally, we disagree with the mother's assertion that Family Court erred by denyingher request for a hearing pursuant to Family Ct Act § 1028 after temporary custodywas granted to the father. As relevant here, Family Ct Act § 1028 provides that,upon an application by a[*5]"parent or other personlegally responsible for the care of a child temporarily removed under [Family Ct Actarticle 10, part 2] . . . for an order returning the child, the court shall hold ahearing to determine whether the child should be returned" (Family Ct Act § 1028[a]). Here, at the time that physical custody was changed from the mother to the father,the neglect proceeding had not been commenced and the parties' competing custodypetitions were the only petitions pending. Family Court denied the mother's request for ahearing because the child had been placed with the father in the context of the custodyproceedings and had not been removed under Family Ct Act article 10. Under thesecircumstances, we agree with Family Court that no hearing was required. In any event,even if Family Ct Act article 10 were applicable, Family Court's ultimate finding ofneglect—and our affirmance thereof—would render the mother's argumentmoot (see Matter of Karm'ny QQ. [Steven QQ.], 114 AD3d 1101 [2014] [decided herewith]; Matter of Mary YY. [Albert YY.], 98 AD3d 1198, 1198[2012]), and the exception to the mootness doctrine would not apply (see Matter of Kiearah P., 46AD3d 958, 959 [2007]; compare Matter of Lucinda R. [Tabitha L.], 85 AD3d 78,83-84 [2011]).
To the extent not specifically addressed herein, the mother's remaining contentionshave been reviewed and found to be lacking in merit.
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The parties agreed thatthe custody petitions would be held in abeyance pending a fact-finding hearing on theneglect petition. Subsequent to the neglect finding, Family Court held a combinedhearing on the custody petition and disposition of the neglect petition and ultimatelyawarded the father sole legal and physical custody of the child, with visitation to themother. The mother has filed a separate appeal from that order.
Footnote 2: Notably, despite themother's claimed concern about the child's allergies, she was observed giving the childfood that contained ingredients to which the child was allegedly allergic. This conductultimately resulted in Family Court temporarily precluding the mother from feeding thechild during visits.
Footnote 3: While the motherargues that the child's weight as reported by Petrillo conflicted with weights charted byother medical providers, inasmuch as Petrillo had been consistently monitoring the childand the other providers would have used different scales, the measurements noted hereinare derived from Petrillo's records.
Footnote 4: Although Family Courtdid not find neglect based upon the mother's failure to attend to the child's dental issues,the mother's conduct with regard thereto is consistent with her approach to the child'sweight problem and with Horenstein's analysis. Notwithstanding the pronounced decayin the child's four upper teeth, she was not seen by a dentist until the father made anappointment in November 2010. The mother was generally distrustful of the dentist,rejected the treatment recommendation and refused to bring the child for a returnappointment. Ultimately, the child required dental surgery to remove four upper frontteeth and to place crowns on four rear teeth.