Another v. TT (In re SS)

183 A.D.3d 1031

122 N.Y.S.3d 832

In the MATTER OF JARRETT SS. and Another, Alleged to be Neglected Children.

St. Lawrence County Department of Social Services, Respondent;

v.Jade TT., Appellant,andScott SS., Respondent.

(And Two Other Related Proceedings.)

527569

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

Calendar Date: March 25, 2020

Decided and Entered: May 14, 2020

Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.

St. Lawrence County Department of Social Services, Canton (Amanda Calton of counsel), for St. Lawrence County Department of Social Services, respondent.

Noreen McCarthy, Keene Valley, for Scott SS., respondent.

Omshanti Parnes, Plattsburgh, attorney for the children.

Before: Lynch, J.P., Mulvey, Devine, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Lynch, J.P.

Respondent Jade TT. (hereinafter the mother) and respondent Scott SS. (hereinafter the father) are the parents of two children, a son (born in 2014) and a daughter (born in 2015). In May 2017, petitioner filed a neglect petition alleging, among other things, that respondents neglected the children by leaving them unsupervised, knowing that the son had a disability. Thereafter, in June 2017, Family Court entered orders of protection, upon respondents' consent, ordering respondents to refrain from consuming any alcohol, illegal drugs or unprescribed prescription drugs and to submit to drug and alcohol tests as arranged by petitioner. During a fact-finding hearing, the court was notified that the father was in the custody of the Ogdensburg Police Department awaiting arraignment and, as a result, the court adjourned the fact-finding hearing as to the father but continued the hearing as to the mother. Following the fact-finding hearing, in July 2018, the court granted the neglect petition as to the mother finding that she neglected the children by leaving them unsupervised.¹ The mother appeals.

The mother contends that Family Court erred in finding that she neglected the children as she merely left them alone for a few minutes.² "To satisfy its burden on the neglect petition, petitioner had to prove by a preponderance of the evidence that [the mother's] failure to exercise a minimum degree of care in providing proper supervision or guardianship resulted in the child[ren]'s physical, mental or emotional condition being impaired or placed in imminent danger of becoming impaired" ( Matter of Thomas XX. [Thomas YY.] , 180 A.D.3d 1175, 1175–1176, 119 N.Y.S.3d 604 [2020] [internal quotation marks and citations omitted]; see Family Ct Act § 1012[f][i][B] ; Matter of Aerobella T. [Bartolomeo V.] , 170 A.D.3d 1453, 1453, 96 N.Y.S.3d 738 [2019] ). "A finding of neglect requires only an imminent threat of injury or impairment, not actual injury or impairment, and such threat may be established through a single incident or circumstance" ( Matter of Emmanuel J. [Maximus L.] , 149 A.D.3d 1292, 1294, 52 N.Y.S.3d 154 [2017] [citations omitted]; see Matter of Jordyn WW. [Tyrell WW.] , 176 A.D.3d 1348, 1349, 111 N.Y.S.3d 416 [2019] ). "When determining whether a parent or guardian has failed to exercise a minimum degree of care, the relevant inquiry is whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances" ( Matter of Raelene B. [Alex D.] , 179 A.D.3d 1315, 1317, 116 N.Y.S.3d 787 [2020] [internal quotation marks and citations omitted]; see Matter of Ellysha JJ. [Jorge JJ.] , 173 A.D.3d 1287, 1288, 103 N.Y.S.3d 177 [2019], lv denied 34 N.Y.3d 901, 2019 WL 5382380 [2019] ). We accord deference to Family Court's credibility determinations and factual findings if they are supported by a sound and substantial basis in the record (see Matter of Johnathan Q. [James Q.] , 166 A.D.3d 1417, 1418, 89 N.Y.S.3d 390 [2018] ).

At the fact-finding hearing, a police officer testified that, on March 30, 2017, he, along with a police sergeant, responded to a call at the mother's house to conduct a welfare check of the children. Upon arrival, the police officer looked through a glass door to the kitchen and living room, which is located on the right of the kitchen, and observed two children alone on the floor, unsupervised, and the daughter was crying. According to the police officer, after knocking heavily on the door and yelling for respondents for a few minutes, the officers entered the residence to ensure the safety of the children. When they entered the house, the officers continued yelling for respondents. The police officer then observed that the daughter "was crawling around [and] the [son] was pulling DVDs or something to [that] effect near the [television]." The police officer further testified that, after "a minute or so," the mother emerged from her bedroom and, appearing disoriented, "stepped right over the [daughter]," who was still crying. The police officer then asked the mother whether she would pick up the daughter, at which point she finally did. According to the police officer, the mother initially stated that the father was watching the children, but that she did not know where he was. The mother then stated that she did not hear the police officers because she "work[ed] nights" and "was sleeping or ... must have fallen asleep."

A caseworker for petitioner testified that she was an investigator on respondents' case. According to the caseworker, the son suffers from cerebral palsy caused by a traumatic brain injury from difficulties at birth and receives physical therapy and occupational therapy, as well as attends additional medical providers. As to the incident when the police officers came to her house, the mother told the caseworker that she was switching the laundry over for a very short period of time upstairs and that the father went out to get pizza. The caseworker also testified that she asked the mother to submit to a drug test, but the mother refused. The caseworker also testified as to a second incident when the son was left unsupervised. On May 4, 2017, the caseworker made an unannounced visit to respondents' home and observed the father smoking a cigarette outside the house, watching the daughter, while the son was alone in a highchair in the house. The caseworker did not see the mother, as she was "reported to be sleeping" at that time. The caseworker stated that after the mother woke up, she asked the mother to submit to an oral drug test, but the mother refused and informed the caseworker that she would "not be allowed to step foot back in the home" if she asked the mother to submit to a drug test again. However, the caseworker admitted that she lacked the authority to require the mother to submit to a drug test because no court orders were...