B., GADA, MTR. OF ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1317
CAF 12-02086
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.
IN THE MATTER OF GADA B.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
CARLOS B., RESPONDENT,
AND VIANEZ V., RESPONDENT-APPELLANT.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered October 15, 2012 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that respondent Vianez V. had neglected the subject child.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 10 of the
Family Court Act, respondent mother appeals from an order in which
Family Court found that she neglected the subject child. We note at
the outset that it appears that the mother surrendered her parental
rights to the subject child during a subsequent court appearance.
Assuming, arguendo, that this appeal is not moot because “the finding
of neglect constitutes a permanent and significant stigma that might
indirectly affect the mother’s status in future proceedings” (Matter
of Jamiar W., 84 AD3d 1386, 1386-1387; cf. Matter of Simeon F., 58
AD3d 1081, 1081-1082, lv denied 12 NY3d 709), we affirm. In this
neglect proceeding, petitioner’s burden was to “demonstrate by a
preponderance of the evidence ‘first, that [the] child’s physical,
mental or emotional condition has been impaired or is in imminent
danger of becoming impaired and second, that the actual or threatened
harm to the child is a consequence of the failure of the parent . . .
to exercise a minimum degree of care in providing the child with
proper supervision or guardianship’ ” (Matter of Ilona H. [Elton H.],
93 AD3d 1165, 1166, quoting Nicholson v Scoppetta, 3 NY3d 357, 368;
see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). The court’s
“findings of fact are accorded deference and will not be disturbed
unless they lack a sound and substantial basis in the record” (Matter
-2- 1317
CAF 12-02086
of Kaleb U. [Heather V.—Ryan U.], 77 AD3d 1097, 1098; see Matter of
Arianna M. [Brian M.], 105 AD3d 1401, 1401, lv denied 21 NY3d 862).
Here, based upon the evidence presented by petitioner, combined with
the adverse inference that the court properly drew based upon the
mother’s failure to testify (see Matter of Christine II., 13 AD3d 922,
923), we conclude that there is a sound and substantial basis to
support the court’s finding that “the child was in imminent danger of
impairment as a result of [the mother’s] failure to exercise a minimum
degree of care” (Matter of Paul U., 12 AD3d 969, 971; see Matter of
Claudina E.P. [Stephanie M.], 91 AD3d 1324, 1324; see generally
Nicholson, 3 NY3d at 368-370).
Finally, “[e]ven assuming, arguendo, that we agree with the
[mother] that the court did not adequately state the grounds for its
determination, we conclude that the error is harmless because the
determination is amply support[ed] by the record” (Matter of Donell S.
[Donell S.], 72 AD3d 1611, 1612, lv denied 15 NY3d 705 [internal
quotation marks omitted]).
Entered: December 27, 2013 Frances E. Cafarell
Clerk of the Court