IN RE: TODD D. (Anonymous).

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

IN RE: TODD D. (Anonymous). Administration for Children's Services, et al., respondents; Jean L. (Anonymous), appellant.  (Proceeding No. 1). In the Matter of Dashawn L. (Anonymous). Administration for Children's Services, et al., respondents; Jean L. (Anonymous), appellant.  (Proceeding No. 2).

Decided: July 26, 2004

ANITA R. FLORIO, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, and ROBERT A. LIFSON, JJ. Calcagno & Associates, Staten Island, N.Y. (Andrew John Calcagno of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for respondent Administration for Children's Services. Monica Drinane, New York, N.Y. (Marcia Egger of counsel), Law Guardian for the children.

In two related proceedings pursuant to Family Court Act article 10, the maternal grandmother appeals, as limited by her brief, from so much of an order of disposition of the Family Court, Kings County (Freeman, J.), dated February 11, 2003, as, upon a fact-finding order of the same court dated June 26, 2002, made after a hearing, finding that the appellant had neglected her two grandchildren, released them, upon her consent, to the custody of their mother, to be supervised by the Administration for Children's Services for a period of 12 months.   The appeal from the order of disposition brings up for review the fact-finding order.

ORDERED that the appeal from so much of the order of disposition as, upon the appellant's consent, released the children to the custody of their mother, to be supervised for a period of 12 months, is dismissed, without costs or disbursements, as no appeal lies from portions of an order entered upon the appellant's consent (see Matter of Fatima Mc., 292 A.D.2d 532, 740 N.Y.S.2d 87;  Matter of Jonathan G., 278 A.D.2d 324, 717 N.Y.S.2d 339);  and it is further,

ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof finding neglect by the appellant under allegations two and three of the respective petitions, and substituting therefor a provision dismissing those allegations;  as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

 Contrary to the appellant's contention, the Family Court's determination that she neglected her grandchildren under allegations one and four of the petitions was supported by a preponderance of the evidence (see Family Ct. Act §§ 1012 and 1046).   Where, as here, issues of credibility are presented, the hearing court's findings must be accorded great deference (see Matter of Commissioner of Social Servs. v. Kim G., 240 A.D.2d 664, 665, 659 N.Y.S.2d 501).   The credible evidence adduced at the hearing established that the appellant maintained her apartment in a deplorable and unsanitary condition.   Accordingly, the Family Court correctly determined that there was an imminent danger of impairment of the children's health as a result of the appellant's conduct (see Matter of Nathifa B., 294 A.D.2d 432, 742 N.Y.S.2d 646;  Matter of Commissioner of Social Servs. v. Anne F., 225 A.D.2d 620, 639 N.Y.S.2d 449;  Matter of Lillian R., 196 A.D.2d 503, 600 N.Y.S.2d 756;  Matter of Busch v. Margaret B., 109 A.D.2d 837, 486 N.Y.S.2d 362).

 While domestic violence is also a permissible basis upon which to make a finding of neglect (see Matter of Deandre T., 253 A.D.2d 497, 676 N.Y.S.2d 666), such findings are generally made where the domestic violence is so severe or repetitive that it creates an imminent danger that the child's physical, mental, and emotional health would be harmed (see Matter of Carlos M., 293 A.D.2d 617, 741 N.Y.S.2d 82;  Matter of Deandre T., supra ).   Here, the appellant's conduct with her daughter did not constitute the level of domestic violence that has been held to serve as a basis for neglect (see e.g. Matter of Lonell J., 242 A.D.2d 58, 673 N.Y.S.2d 116).   In particular, there are no allegations that any injury ever occurred.   Further, there was insufficient evidence to establish that the children's physical, emotional, or mental condition was impaired or in imminent danger of impairment due to the conduct of the appellant and her daughter toward each other (cf. Matter of Anthony PP., 291 A.D.2d 687, 737 N.Y.S.2d 430;  Matter of Luke M., 193 A.D.2d 446, 597 N.Y.S.2d 679;  Matter of Damon S., 185 A.D.2d 850, 587 N.Y.S.2d 355).   Accordingly, the findings of neglect under allegations two and three of the respective petitions should have been dismissed.

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