Otsego Cty. Dep't of Soc. Serv. v. Tenise ZZ. (In re Lily A.)

210 N.Y.S.3d 366

In the MATTER OF LILY A. and Others, Alleged to be Neglected Children.

Otsego County Department of Social Services, Respondent;

v.Tenise ZZ., Appellant, et al., Respondent.

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

Calendar Date: March 27, 2024

Decided and Entered: May 9, 2024

Jonathan L. Becker, Cooperstown, for appellant.

Denise J.B. Hollis, County Attorney, Cooperstown (Corrie A. Damulis of counsel), for Otsego County Department of Social Services, respondent.

Larisa Obolensky, Bovina Center, attorney for the children.

Before: Egan Jr., J.P., Aarons, Pritzker, Lynch and Fisher, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from an order of the Family Court of Otsego County (Michael F. Getman, J.), entered February 22, 2023, which, in a proceeding pursuant to Family Ct Act article 10, temporarily removed the subject children from respondents’ custody.

Respondent Tenise ZZ. (hereinafter the mother) and respondent Brandon A. (hereinafter the father) are the parents of the subject children (bom in 2015, 2017 and 2021). Petitioner commenced this neglect proceeding on September 14, 2022, seeking to remove the children from respondents’ care as the result of, among other things, allegations that the children were living in a home without running water in June 2022, that the father had overdosed while caring for the children in July 2022, and that the mother had punched and seriously injured the maternal grandmother in the children’s presence earlier in September 2022. Family Court executed an order to show cause on the same day which temporarily removed the subject children from respondents’ care and placed them with the grandmother. Following a hearing conducted pursuant to Family Ct Act § 1027, Family Court continued the temporary removal and placement. The mother appeals.

[1, 2] We affirm. "It is well settled that, in determining a removal application pursuant to Family Ct Act § 1027, 'a court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal’ " (Matter of I sayah R. [Shaye R.], 149 A.D.3d 1223, 1224, 51 N.Y.S.3d 259 [3d Dept. 2017], quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 380, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]; see Family Ct Act § 1027[b]; Matter of Riley P. [Raymond S.], 171 A.D.3d 757, 759, 97 N.Y.S.3d 206 [2d Dept. 2019]). The hearing here included the testimony of one of petitioner’s caseworkers, who had investigated the June, July and September 2022 incidents. The caseworker testified as to how she conducted a home visit in June 2022 and found a lack of running water at respondents’ residence that forced the children to go to a neighbor’s house to bathe, as well as how she offered SNAP benefits and housing services to address the situation. The caseworker further described how she confirmed that the father had overdosed in July 2022 and how the mother was again offered services and agreed to a safety plan prohibiting the father from having unsupervised contact with the children. The caseworker then set forth how she spoke to both the mother and the grandmother in the wake of the September 2022 incident and learned that the two women had become embroiled in an argument at the grandmother’s residence – where the mother and the children were, by then, living – during which the mother had punched the grandmother. The caseworker made clear that the children were in the room and saw this occur, with one telling the caseworker that "mom pushed grandma and punched her and there was blood everywhere." Notwithstanding the fact that the mother punched the grandmother hard enough to put her in the hospital with a brain bleed and mouth lacerations, the caseworker added that the mother saw nothing wrong with her actions because, in her view, she was acting in self-defense after the...