| Matter of Richard S. (Lacey P.) |
| 2015 NY Slip Op 05685 [130 AD3d 630] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Richard S. Suffolk County Departmentof Social Services, Respondent-Appellant; Lacey P. et al., Appellants-Respondents.(Proceeding No. 1.) In the Matter of Scarlett S. Suffolk County Department of SocialServices, Respondent-Appellant; Lacey P. et al., Appellants-Respondents. (ProceedingNo. 2.) |
Marina M. Martielli, East Quogue, N.Y., for appellant-respondent Lacey P.
Heather A. Fig, Bayport, N.Y., for appellant-respondent Richard S.
Judd & Moss, P.C., Ronkonkoma, N.Y. (Francine H. Moss of counsel), forappellant-respondent Vicki P.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (James G. Bernet ofcounsel), for respondent-appellant.
Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), attorney forthe children.
Appeals from stated portions of an order of the Family Court, Suffolk County (CarenLoguerico, J.), dated December 12, 2013, and appeals and a cross-appeal from an orderof fact-finding and disposition of that court dated December 20, 2013. The order datedDecember 12, 2013, after a fact-finding hearing, inter alia, denied that branch of themother's motion which was to dismiss the petition alleging that she neglected thechildren by her misuse and abuse of prescription medication. The order of fact-findingand disposition dated December 20, 2013, after the fact-finding hearing, in effect,dismissed the petitions alleging that the father, the mother, and the maternal grandmotherabused the child Richard S. and derivatively neglected the child Scarlett S., [*2]and the petition alleging that the father neglected thechildren by his misuse and abuse of prescription medication and failure to protect thechildren from the misuse and abuse of prescription medication by the mother, and foundthat the father, the mother, and the maternal grandmother medically neglected the childRichard S. and thereby derivatively neglected the child Scarlett S., and that the motherneglected the subject children by her misuse and abuse of prescription medication, and,upon the parties' consent, placed the subject children in the custody of the SuffolkCounty Commissioner of Social Services and kinship foster care of the paternalgrandmother.
Ordered that on the Court's own motion, the petitioner's notice of cross-appeal fromthe order dated December 12, 2013, is deemed a premature notice of cross-appeal fromthe order of fact-finding and disposition (see CPLR 5520 [c]); and it isfurther,
Ordered that the appeals by the father, the mother, and the maternal grandmotherfrom the order dated December 12, 2013, are dismissed, without costs or disbursements;and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as appealedand cross-appealed from, without costs or disbursements.
The appeals from the intermediate order dated December 12, 2013, must bedismissed because that order is not appealable as of right and leave to appeal has notbeen granted (see Family Ct Act § 1112 [a]), and any possibility oftaking a direct appeal therefrom terminated with the entry of the order of fact-finding anddisposition. The issues raised on the appeals from the intermediate order are brought upfor review and have been considered on the appeals and cross appeal from the order offact-finding and disposition (see CPLR 5501 [a] [1]; Family Ct Act§ 1118).
In August 2012, the petitioner filed separate neglect petitions against the mother andthe father. The respective petitions alleged that the mother and father each neglected bothof the subject children, Richard S., born March 3, 2011 (hereinafter Ricky), and ScarlettS., born April 4, 2007, by their alleged misuse and abuse of prescription medication priorto and in August 2012. In December 2012, the petitioner filed two petitions, one as toeach child, against the father, two petitions, one as to each child, against the mother, andtwo petitions, one as to each child, against the maternal grandmother. The respectivepetitions relating to Ricky alleged that the mother, the father, and the maternalgrandmother physically abused him, in that he suffered a perforated bowel and fracturesto his left leg and left arm and bruises, which were allegedly nonaccidental in nature. Therespective petitions relating to Scarlett alleged that she was thereby derivativelyneglected.
The Family Court, after a fact-finding hearing, inter alia, dismissed the petitionsalleging that the mother, the father, and the maternal grandmother physically abusedRicky, and thereby derivatively neglected Scarlett, and dismissed the petition against thefather alleging that he neglected the children by his misuse and abuse of prescriptionmedication. However, the court found that the mother neglected the children by reason ofher misuse and abuse of prescription medication. The court also, in effect, conformed thepleadings to the proof to include allegations of medical neglect, and thereupon found thatthe parents and the maternal grandmother medically neglected Ricky with respect to hisaforementioned fractures and perforated bowel, and thereby derivatively neglectedScarlett.
The mother, the father, and the maternal grandmother contend that the Family Courtimproperly made the medical neglect determination with respect to Ricky and the relatedderivative neglect determination with respect to Scarlett, because the petitions did notspecifically allege medical neglect, and the Family Court did not give them adequatenotice of its decision to conform the pleadings to the proof in this regard. Pursuant toFamily Court Act § 1051 (b), "[i]f the proof [adduced during thefact-finding hearing] does not conform to the specific allegations of the petition, thecourt may amend the allegations to conform to the proof; provided, however, that in suchcase the respondent shall be given reasonable time to prepare to answer the amendedallegations" (see Matter of Shawniece E., 110 AD2d 900 [1985]; cf. Matter of Vallery P. [JondallaP.], 106 AD3d 575 [2013]).
[*3] Here,the petitioner and the attorney for the children (hereafter the AFC) requested, withoutobjection, during closing arguments following the fact-finding hearing, that the FamilyCourt make a medical neglect determination with respect to Ricky and a relatedderivative neglect determination with respect to Scarlett. The court then gave the partiesapproximately two months to make any further applications they deemed appropriate.However, neither the mother, the father, nor the maternal grandmother did so and,accordingly, their contention that the Family Court, in effect, improperly conformed thepleadings to the proof is not preserved for appellate review. In any event, under theaforementioned circumstances, the parents and the maternal grandmother were givensufficient notice to amend their answer and an opportunity to secure a continuance of thehearing (see Matter of Shawniece E., 110 AD2d at 901; cf. Matter of ValleryP. [Jondalla P.], 106 AD3d at 575). Further, given the evidence of medical neglectadduced at the hearing, the court's decision, in effect, to conform the pleadings to theproof in the manner complained of was a provident exercise of discretion (see Matter of LeVonn G., 20AD3d 530 [2005]; Matter of Sharnetta N., 120 AD2d 276 [1986]).
Moreover, upon, in effect, conforming the pleadings to the proof, the Family Courtproperly found that the mother, the father, and the maternal grandmother medicallyneglected Ricky, and thereby derivatively neglected Scarlett. "In a child protectiveproceeding pursuant to Family Court Act article 10, a finding that a child is abused orneglected must be supported by a preponderance of the evidence" (Matter of Harmony M.E. [AndreC.], 121 AD3d 677, 679 [2014]; see Matter of Lucinda A. [Luba A.], 120 AD3d 492 [2014];Matter of Amber C., 38AD3d 538, 540 [2007]). A neglected child includes any child whose "parent" hasfailed to provide "the child with adequate . . . medical . . . care"(Family Ct Act § 1012 [f] [i] [A]). "To find medical neglect, there must be adetermination that the parent did not seek or accept medical care, and that such failureplaced the child in imminent danger of becoming impaired" (Matter of Shawndel M., 33AD3d 1006, 1006 [2006]). Under certain circumstances, a delay in seeking medicalcare can constitute medical neglect (cf. Matter of Alanie H., 83 AD3d 1066 [2011]). "[I]n thecontext of medical neglect, the court's role is not as surrogate parent and the inquiry isnot posed in absolute terms of whether the parent has made the 'right' or 'wrong'decision" (Nicholson vScoppetta, 3 NY3d 357, 370 [2004]; see Matter of Hofbauer, 47 NY2d648, 656 [1979]). " '[W]hat constitutes adequate medical care cannot be judgedin a vacuum' " (Matterof Terrence P., 38 AD3d 254, 256 [2007], quoting Matter of Felicia D.,263 AD2d 399, 399 [1999]). "The critical factor in this determination is 'whether theparents have provided an acceptable course of medical treatment for their child in light ofall the surrounding circumstances' " (Matter of Terrence P., 38 AD3d at256, quoting Matter of Hofbauer, 47 NY2d at 656).
Here, the evidence showed that the mother, the father, and the maternal grandmothermedically neglected Ricky, and thereby derivatively neglected Scarlett, when they failedto seek timely medical attention for Ricky with respect to the aforementioned fracturesand perforated bowel (seeMatter of Arianna L., 55 AD3d 733 [2008]; Matter of Kevin R., 193AD2d 351 [1993]). The Family Court's assessment of the credibility of the experts whoprovided conflicting testimony is entitled to deference where, as here, its determination issupported by the record, and we decline to disturb that determination (see Matter ofIrene O., 38 NY2d 776 [1975]; Matter of Robert A. [Kelly K.], 109 AD3d 611, 613[2013]; Matter of Yanni D.[Hope J.], 95 AD3d 1313 [2012]; Matter of Nakym S., 60 AD3d 578 [2009]).
The Family Court properly dismissed the petitions alleging that the mother, thefather, and the maternal grandmother abused Ricky, and thereby derivatively neglectedScarlett. A prima facie case of abuse may be established by "proof of injuries sustainedby a child or of the condition of a child of such a nature as would ordinarily not besustained or exist except by reason of the acts or omissions of the parent or other personresponsible for the care of such child" (Family Ct Act § 1046 [a] [ii]; see Matter of Jaiden T.G.[Shavonna D.-F.], 89 AD3d 1021 [2011]). "If the petitioner establishes a primafacie case of abuse, 'the burden of going forward shifts to respondents to rebut theevidence of parental culpability,' although the burden of proof always remains with thepetitioner" (Matter of DavidT.-C. [Denise C.], 110 AD3d 1084, 1085 [2013], quoting Matter of PhilipM., 82 NY2d 238, 244 [1993]). Here, the determination of the Family Court that thepetitioner established a prima facie case of abuse is not contested on appeal. However,contrary to the petitioner's contention, the mother, the father, and the maternalgrandmother presented sufficient evidence to rebut its prima facie case of abuse, throughthe testimony of their expert witnesses. Therefore, the petitioner failed to establish, [*4]by a preponderance of the evidence, that the mother, thefather, and the maternal grandmother abused Ricky, and thereby derivatively neglectedScarlett (see Matter of Jaylin C.[Hassan M.], 118 AD3d 872 [2014]; Matter of David T.-C. [Denise C.],110 AD3d at 1085-1086).
Contrary to the father's and maternal grandmother's contention, the petitioner's briefdoes not improperly include matter dehors the record, such that its entire brief or theportion complained of therein, should be stricken. The complained of matter mirrors the"update" properly provided in the AFC's brief (see Matter of Michael B., 80NY2d 299 [1992]; Matter ofTeshana Tracey T. [Janet T.], 71 AD3d 1032, 1034 [2010]).
The parties' remaining contentions are without merit. Skelos, J.P., Dillon, Duffy andLaSalle, JJ., concur.
Motion by the appellant-respondent Vicki P. on appeals and a cross appeal from anorder of the Family Court, Suffolk County, dated December 12, 2013, and an order offact-finding and disposition of the same court dated December 20, 2013, to strike therespondent-appellant's brief or stated portions thereof, on the ground that they refer tomatter dehors the record. By decision and order on motion of this Court dated March 17,2015, the motion was held in abeyance and referred to the panel of Justices hearing theappeals and cross appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the submission of the appeal, it is
Ordered that the motion is dismissed as academic in light of our determination in theappeals decided herewith (see Matter of Richard S. [Lacey P.], 130 AD3d 630 [2015]). Skelos, J.P., Dillon, Duffy and LaSalle, JJ., concur.