IN RE: Joseph L. (Anonymous).  Suffolk County Department of Social Services

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

IN RE: Joseph L. (Anonymous).  Suffolk County Department of Social Services, respondent;  Cyanne W. (Anonymous), appellant.

2017–09426

Decided: January 30, 2019

MARK C. DILLON, J.P. JEFFREY A. COHEN COLLEEN D. DUFFY LINDA CHRISTOPHER, JJ. Glenn Gucciardo, Northport, NY, for appellant.

Submitted—November 13, 2018

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an order of the Family Court, Suffolk County (Caren Loguercio, J.), dated June 13, 2017, and (2) an order of fact-finding and disposition of the same court dated July 19, 2017.  The orders, insofar as appealed from, made after a fact-finding hearing, found that the mother neglected the subject child.

ORDERED that the appeal from the order dated June 13, 2017, is dismissed, without costs or disbursements, as it was superseded by the order of fact-finding and disposition dated July 19, 2017;  and it is further,

ORDERED that the order of fact-finding and disposition dated July 19, 2017, is affirmed insofar as appealed from, without costs or disbursements.

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing that the subject child has been abused or neglected by “a preponderance of evidence” (Family Ct Act §§ 1012[f][i];  1046[b][i] ).  “Even though evidence of a parent's mental illness, alone, is insufficient to support a finding of neglect of a child, such evidence may be part of a neglect determination when the proof further demonstrates that the parent's condition creates an imminent risk of physical, mental, or emotional harm to the child” (Matter of Maurice M. [Suzanne H.], 158 AD3d 689, 690–691;  see Matter of Nialani T. [Elizabeth B.], 125 AD3d 672, 674).  Indeed, even when a child has not been actually impaired, a finding of neglect is appropriate to prevent imminent impairment, which is “an independent and separate ground on which a neglect finding may be based” (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 N.Y.2d 73, 79;  see Family Ct Act § 1012[f][i] ).  In such cases, the “court is not required to wait until a child has already been harmed before it enters a finding of neglect” (Matter of Kiemiyah M. [Cassiah M.], 137 AD3d 1279).  The Family Court's assessment of credibility of the witnesses is entitled to considerable deference unless clearly unsupported by the record (see Matter of Maurice M. [Suzanne H.], 158 AD3d at 691;  Matter of Isabella D. [David D.], 145 AD3d 1003, 1004).

Here, we agree with the Family Court's determination that the DSS established, by a preponderance of the evidence received at the fact-finding hearing, that there existed a causal connection between the mother's largely untreated mental illness and the risk of potential and imminent harm to the subject child.  The court found that the mother, during her testimony, had a “colorless speech pattern,” a “vacant expression,” and exhibited a quickness to blame the staff of the group home, fellow residents, and medical professionals for her predicament.  We agree with the court's determination that the mother lacked insight as to her largely untreated mental illness which “created an imminent danger of impairing the child's physical, mental, or emotional condition” (Matter of Maurice M. [Suzanne H.], 158 AD3d at 691).  Accordingly, we agree with the court's determination that the mother neglected the child.

DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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