Sherry S., Respondent-Appellant. v. <<

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

Matter of DAKOTA K. Erie County Department of Social Services, Petitioner-Respondent; Sherry S., Respondent-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., PINE, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Kathleen M. Carmody, Buffalo, for respondent-appellant. Charles D. Halvorsen, Buffalo, Law Guardian. Gary J. Wojtan, Cheektowaga, for petitioner-respondent.

Respondent filed a notice of appeal from the decision of Family Court rather than the order of fact-finding and disposition.   We exercise our discretion to treat the appeal as taken from that order (see, CPLR 5520 [c];  Matter of Wayne H., 233 A.D.2d 941, 649 N.Y.S.2d 576).   We dismiss the appeal from that portion of the order constituting the disposition because respondent stipulated to the disposition (see, Matter of Cherilyn P., 192 A.D.2d 1084, 596 N.Y.S.2d 233, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660), and we confine our review to the court's adjudication of neglect following the fact-finding hearing (see, Matter of Reginald B., 249 A.D.2d 979, 671 N.Y.S.2d 381).

Petitioner proved neglect by a preponderance of the evidence (see, Family Ct. Act § 1046[b][i];  Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038).   Contrary to the contention of respondent, the evidence established a causal connection between respondent's behavior and the imminent danger of impairing the child's physical, mental or emotional condition (see, Family Ct. Act § 1012[f][i][B];  Matter of Rebecca W., 122 A.D.2d 582, 504 N.Y.S.2d 928).   In particular, a psychiatrist diagnosed respondent with a personality disorder involving an inability to cope with anger and frustration.   Also admitted in evidence was a report indicating that, when respondent became angry with the child, she slammed the child's carriage, with the child in it, into the side of a house.   There was further testimony by two caseworkers concerning the inability of respondent to control her anger.   The findings and credibility assessments of the court have a sound and substantial basis in the record, and thus we decline to disturb them (see, Matter of Kivler v. Olczak, 262 A.D.2d 938, 692 N.Y.S.2d 549 ).

Appeal from that portion of order constituting disposition unanimously dismissed and order affirmed without costs.


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