IN RE: DANIELLA “HH” 1 et al.

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

IN RE: DANIELLA “HH” 1 et al., Alleged to be Neglected Children. Albany County Department of Social Services, Appellant; Eileen “JJ” 1 Respondent.

Decided: February 20, 1997

Before WHITE, J.P., and CASEY, PETERS, SPAIN and CARPINELLO, JJ. Jeffrey G. Kennedy, Department of Social Services, Albany, for appellant. Cheryl E. Rodgers, Albany, for respondent. Jessica Eggleston, Law Guardian, Saratoga Springs, for Daniella“ HH” and another.

In November 1995, petitioner filed a neglect petition pursuant to Family Court Act article 10 alleging that respondent neglected her two children, Daniella “HH” (born in 1994) and Max “II” (born in 1995).   The petition alleged, inter alia, that in mid-November 1995 respondent brought Max to a local hospital emergency room suffering from severe dehydration, acutely toxic high sodium levels and malnutrition;  he was subsequently diagnosed as suffering from nonorganic failure to thrive.   The petition also alleged that respondent had unstable housing and had been offered services in the past but failed to cooperate and, further, that respondent admitted feeling stressed and overwhelmed by the care of her two children and feared that she might hurt Daniella and that she was not safe in her care.2  After a fact-finding hearing, Family Court found that respondent neglected Max by failing to provide adequate medical care for him, but found the evidence presented at the hearing was insufficient to show that Daniella had been neglected;  the court dismissed that portion of the petition pertaining to Daniella.   Petitioner now appeals from that part of Family Court's order which dismissed its application to adjudicate Daniella as a neglected child.

 We affirm.   Although Family Court failed to set forth the reasoning on which it based its decision, upon our review of the record we agree that the evidence adduced at the hearing was insufficient to support a finding that Daniella was a neglected child.   Significantly the record reveals that the hearing was primarily focused on respondent's neglect of Max.   Although respondent told a mental health evaluator that she gets stressed out and could hit Daniella, the evaluator testified that respondent stated that she would never harm Daniella nor had she ever struck her.   Further, respondent's testimony that she told a caseworker she would harm her daughter was contradicted by her subsequent testimony that she would never harm her daughter and that she no longer feels the frustration she once felt.   In explaining the contradiction respondent stated that she was confused when initially questioned in the waiting room at the hospital;  notably, no testimony or evidence was introduced that respondent ever physically or emotionally harmed Daniella.   Moreover, there is absolutely no evidence in the record of any medical or emotional problems or needs with respect to Daniella.

 It is beyond cavil that the hearing court's determination regarding the credibility of a witness is entitled to great deference and will only be disturbed in the absence of a basis in the record (see, Matter of Guy UU. [Donald UU.], 200 A.D.2d 852, 606 N.Y.S.2d 830;  Matter of Esther CC. [Joseph CC.], 194 A.D.2d 949, 598 N.Y.S.2d 871).   Here, the limited testimony elicited at the hearing regarding the alleged neglect of Daniella was not consistent and Family Court had a superior vantage point from which to determine the credibility of the witnesses.   In our view, the record supports Family Court's determination regarding the absence of any direct evidence that respondent neglected Daniella.

 Next, we reject petitioner's contention that Max's medical condition when he was admitted to the hospital is compelling evidence of respondent's gross and profound neglect of Daniella.   Although Family Court Act § 1046(a)(i) allows evidence of abuse or neglect of one sibling to be considered in determining whether other children in the household were abused or neglected (see, Matter of Christina Maria C., 89 A.D.2d 855, 453 N.Y.S.2d 33), the statute does not mandate a finding of derivative neglect (see, Matter of Rasheda S. [Winston S.], 183 A.D.2d 770, 586 N.Y.S.2d 522).   Derivative findings of neglect should be entered where the evidence as to the child found to be neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in respondent's care (see, Matter of Vincent M. [Sandra M.], 193 A.D.2d 398, 404, 597 N.Y.S.2d 309;  see also, Family Ct Act § 1012[f][i] ).

The record reveals that Max, unlike his sister, had health problems from the time of his birth;  he was a problem eater, had a formula intolerance, and suffered from both nasal congestion and mild gastroesophageal reflux.   The record further reveals that upon admission to the hospital Max was extremely ill and was suffering from nonorganic failure to thrive.   Although Max's condition properly supported a finding that he was a neglected child, in our view his condition does not support a finding of derivative neglect regarding Daniella.   Further, given the credibility determinations made by Family Court, the record does not support a finding that respondent suffered from a fundamental defect in her understanding of parenting, nor does it support a finding that respondent will place Daniella in substantial risk of harm (cf., Dutchess County Dept. of Social Servs. [Douglas E. III] v. Douglas E. Jr., 191 A.D.2d 694, 595 N.Y.S.2d 800;  see also, Matter of Rasheda S. [Winston S.], supra;  Matter of Lynelle W., 177 A.D.2d 1008, 578 N.Y.S.2d 313).   Notably, Family Court specifically acknowledged that it was cognizant of Family Court Act § 1046(a)(i) in reaching its conclusion.   Accordingly, we will not disturb Family Court's order.

ORDERED that the order is affirmed, without costs.

I respectfully dissent.   Even noting “that great deference will be accorded to * * * factual findings made by Family Court which had direct observation of and access to the parties and the professionals who testified * * * [which will] not [be] disturb[ed] * * * on appeal unless we find that they lack a sound and substantial basis in the record” (Matter of Angelina AA. [Joseph BB.], 211 A.D.2d 951, 952, 622 N.Y.S.2d 336, lv. denied 85 N.Y.2d 808, 628 N.Y.S.2d 51, 651 N.E.2d 919), to accord such deference here mandates reversal since the court only detailed factual findings which supported petitioner's contentions and failed to detail those which formed the basis of its determination that Daniella “HH” was not a neglected child (see, Matter of Jose L. I., 46 N.Y.2d 1024, 1025, 416 N.Y.S.2d 537, 389 N.E.2d 1059).   Our examination of the record reveals a quantum of evidence which clearly preponderates in favor of a finding of neglect (see, Family Ct Act § 1046[b] ) with respect to the child Daniella (see, Family Ct Act § 1012[f][i][B] ).

In its own decision, Family Court found, by crediting the testimony of Mary Beth McManus, the child protective caseworker, and Ann Dillon, mental health evaluator for the Department of Social Services, that respondent was “overwhelmed, frustrated and without the physical, emotional and financial resources to care for two very young children, one of whom has special needs”.   The court credited the statements made by respondent to petitioner's employees that “she sometimes felt that she would hurt her daughter Daniella and [that] she expressed suicidal ideations”.   Finally, the court found the evidence to “reveal[ ] that over the last six months [respondent] has resided in several temporary locations, none of which were ideal for the children * * * [and] that * * * [she] had a low frustration tolerance and a great deal of pent up anger, without possessing the necessary coping mechanisms to deal with these problems”.

At trial, respondent admitted that she had refused preventive services after an “indicated” report was made concerning Daniella and confirmed that she stated to McManus that she felt that she could have hurt her.   Even when it was explained that an application was going to be made for the removal of Max “II” and that she might be able to have Daniella at home while a service plan was devised and implemented, respondent still felt that Daniella's “best interests” would not be served by her remaining with her since she continued to be fearful that she could hurt her.   Finally, the record revealed that this anger and frustration continued even after Daniella's removal.

Upon examination of the record and the factual findings made by the Family Court, coupled with the finding of neglect made with respect to the child Max and the reasons underlying that determination, I conclude that the Family Court erred when it failed to find that respondent posed an imminent threat to Daniella's “physical, mental or emotional condition” (see, Family Ct Act § 1012[f][i][B];  [h];  § 1046[a];  Matter of Stephanie WW. [Janet WW.], 213 A.D.2d 818, 623 N.Y.S.2d 404;  Matter of Tammie Z., 105 A.D.2d 463, 480 N.Y.S.2d 786, affd 66 N.Y.2d 1, 494 N.Y.S.2d 686, 484 N.E.2d 1038).

Accordingly, I would modify that portion of the order which dismissed that portion of the petition brought pursuant to Family Court Act article 10 as it pertained to the child Daniella, reinstate it, adjudicate said child to be neglected and remit the matter to Family Court for a dispositional hearing.


2.   Prior to the petition being filed, respondent consented to the temporary removal of the children pursuant to Family Court Act § 1021.

SPAIN, Justice.

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