Admin. for Children's Servs. v. Alexander B. (In re Adina B.)

210 A.D.3d 981

179 N.Y.S.3d 261

In the MATTER OF ADINA B. (Anonymous).

Administration for Children's Services, respondent;

v.Alexander B. (Anonymous), appellant.

(Proceeding No. 1)

In the Matter of Aaron B. (Anonymous).

Administration for Children's Services, petitioner;

v.Alexander B. (Anonymous), respondent.

(Proceeding No. 2)

In the Matter of Naomi B. (Anonymous).

Administration for Children's Services, petitioner;

v.Alexander B. (Anonymous), respondent.

(Proceeding No. 3)

2021–05440, 2021–08622

Docket Nos. N-23859-19, N-23860-19, N-23861-19

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 1, 2022

November 23, 2022

Sarah Han, Brooklyn, NY (Amy Mulzer and Christine Gottlieb of counsel; Catherine O'Neill and Sean Langberg on the brief), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Deborah A. Brenner and Diana Lawless of counsel), for respondent.

Joan N. G. James, Brooklyn, NY, attorney for the child Adina B.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Kings County (Linda M. Capitti, J.), dated June 30, 2021, and (2) an order of disposition of the same court dated November 9, 2021. The order of fact-finding, insofar as appealed from, after a fact-finding hearing, found that the father neglected the child Adina B. The order of disposition, upon the order of fact-finding and after a dispositional hearing, directed the father to engage in individual therapy and limited his parental access with the child Adina B. to supervised parental access.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the portion of the order of fact-finding appealed from was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

The Administration for Children's Services (hereinafter ACS) commenced these related proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the father neglected the child Adina B. (hereinafter the child) by twice administering THC oil to her while she was in the hospital undergoing treatment for aggressive cancer and by stating that he would do so again in the future, despite having been advised that such action was against the medical advice of the child's treating physicians. After a fact-finding hearing, the Family Court found that the father neglected the child. The court found that while the father's conduct did not cause the child to suffer actual harm, "the record shows that the [father] clearly stated his intent to continue to administer THC oil to [the child] against her treating physicians' advice," and that the child was at risk of actual harm. After a dispositional hearing, the court directed the father to engage in individual therapy and limited his parental access with the child to supervised parental access. The father appeals.

In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act § 1046[b] ; Matter of Sage H. [Lovette H.], 204 A.D.3d 795, 796, 164 N.Y.S.3d 460 ). "To establish neglect based upon a parent's failure to provide adequate medical care, a petitioner must prove, by a preponderance of the evidence, that the child's physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care, though financially able to do so" ( Matter of Jaelin L. [Kimrenee C.], 126 A.D.3d 795, 796, 5 N.Y.S.3d 246 ; see Family Ct Act §§ 1012[f][i][A] ; 1046[b][i]). "[T]he most significant factor in determining whether a child is being deprived of adequate medical care ... is whether the [parent has] provided an acceptable course of medical treatment for [his or her] child in light of all the surrounding circumstances" ( Matter of Hofbauer, 47 N.Y.2d 648, 656, 419 N.Y.S.2d 936, 393 N.E.2d 1009 ). " ‘Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had...