| Matter of Hailey XX. (Angel XX.) |
| 2015 NY Slip Op 02814 [127 AD3d 1266] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Hailey XX. and Others, ChildrenAlleged to be Neglected. Cortland County Department of Social Services, Respondent;Angel XX., Appellant. |
Lisa K. Miller, McGraw, for appellant.
Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forrespondent.
Natalie B. Miner, Homer, attorney for the children.
Lahtinen, J.P. Appeal from an order of the Family Court of Cortland County (Ames,J.), entered October 18, 2013, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate respondent's children to beneglected.
Respondent and her husband (hereinafter the father) are the parents of three children,born in 2008, 2010 and 2011. The oldest child had previously been temporarily removedfrom the parents' care in 2009 for neglect after the father broke the child's arm andneither parent sought medical care for the child. That incident resulted in the father beingconvicted of assault and, when he violated probation by perpetrating domestic violenceupon respondent, he was incarcerated. While the father was incarcerated, respondent andher three children began living with respondent's new boyfriend. Respondent and herparamour were involved in repeated incidents of domestic violence—resulting inboth being arrested in December 2012—and petitioner then commenced theinstant neglect proceeding. Following a hearing, Family Court rendered a detailed writtendecision granting the petition finding, among other things, that [*2]respondent engaged in domestic violence with herparamour in the presence of the children, the home was filthy and the children were notprovided basic hygiene, and respondent failed to keep the children in necessary earlyintervention services. Respondent appeals.
Prefatorily, we are unpersuaded by respondent's contention that Family Court erredin allowing petitioner to amend its petition to conform to the proof by adding allegationsof poor hygiene and uncleanliness. "Family Court is vested with broad discretion,pursuant to Family Ct Act § 1051 (b), to allow an amendment of thepleadings 'so long as a reasonable time to prepare and answer is given' " (Matter of Thomas JJ., 14AD3d 953, 954 [2005], quoting Matter of Nikole B., 263 AD2d 622, 623[1999]). There was evidence of the prevailing unsanitary conditions, Family Courtgranted the motion to amend in June 2013, and the court reopened the proof and allowedrespondent to present proof regarding such issue at a hearing in September 2013. FamilyCourt did not abuse its discretion in permitting the amendment under these circumstances(see Matter of Thomas JJ., 14 AD3d at 954; see also Matter of Ariel C.W.-H. [Christine W.], 89 AD3d1438, 1439 [2011]; Matterof Kila DD., 28 AD3d 805, 806 [2006]).
Respondent's primary argument is that petitioner failed to prove that she neglectedher children. To establish neglect, petitioner must "demonstrate[ ], by a preponderance ofevidence, that the child[ren]'s physical, mental or emotional condition was harmed or isin imminent danger of such harm as a result of the parent's failure to exercise a minimumdegree of care" (Matter of Xavier II., 58 AD3d 898, 899 [2009]). "[I]mminentdanger of harm must be near or impending . . . [and] there must be a link orcausal connection between the basis for the neglect petition and the circumstances thatallegedly produce the child[ren]'s impairment or imminent danger of impairment" (Matter of Lillian SS. [BrianSS.], 118 AD3d 1079, 1080 [2014], lv dismissed 24 NY3d 936 [2014][internal quotation marks and citations omitted]). "In determining whether a parent isexercising a minimum degree of care, the parent's behavior must be evaluatedobjectively, in light of whether a reasonable and prudent parent would have so acted, orfailed to act, under the circumstances" (Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120,1122 [2011] [internal quotation marks, brackets and citations omitted]). "We accorddeference to Family Court's credibility determinations and will not disturb its findings ifthey are supported by a sound and substantial basis in the record" (Matter of Thomas M. [SusanM.], 81 AD3d 1108, 1109 [2011] [citations omitted]; see Matter of Diane C. v RichardB., 119 AD3d 1091, 1093 [2014]).
Respondent repeatedly became involved in and remained in abusive situations, andshe failed to take steps to protect the children from witnessing the resulting domesticviolence. Respondent and her paramour had several incidents of domestic violence thatresulted in police being summoned, and then respondent would not cooperate in limitingthe paramour's access to the children via a protective order or pressing charges. Althoughthe paramour was the initial aggressor in most incidents, Family Court also credited theproof that respondent pursued and perpetrated violent acts on the paramour in thepresence of the children. In addition, witnesses who went to the apartment whererespondent resided recalled seeing the children and the residence in a very uncleancondition including, among other things, food and dirt on the floor, cigarette butts andashtrays on the floor, clothes thrown throughout the apartment, the youngest child in asleeper encrusted with food, bottles with curdled milk, diapers on all the children thatneeded to be changed and that smelled so strongly that they were characterized as"atrocious," and children not appropriately dressed and so dirty that caseworkers tookturns trying to clean them. There was also proof that the children needed—andarrangements had been made for—early intervention services, but respondentfailed to take reasonable steps to keep the children in the necessary early interventionservices for a period of six months during 2012. Accepting Family Court's credibilitydeterminations and viewing the evidence cumulatively, there was [*3]sufficient proof to support the neglect determination (see e.g. Matter of Heyden Y.[Miranda W.], 119 AD3d 1012, 1014 [2014]).
Garry, Rose and Devine, JJ., concur. Ordered that the order is affirmed, withoutcosts.