Opinion
742 CAF 13-01891
06-12-2015
In the Matter of CRYSTIANA M. Erie County Department of Social Services, Petitioner–Respondent; Crystal M., Respondent, and Pamela J., Respondent–Appellant.
David J. Pajak, Alden, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent. Jessica L. Vesper, Attorney for the Child, Buffalo.
David J. Pajak, Alden, for Respondent–Appellant.
Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
Jessica L. Vesper, Attorney for the Child, Buffalo.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, and WHALEN, JJ.
Opinion
MEMORANDUM: Respondent Pamela J. (grandmother) contends that Family Court erred in finding that she neglected her granddaughter. We note at the outset that, although the grandmother erroneously appealed from the fact-finding order rather than the order of disposition, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the order of disposition (see Matter of Morgan P., 60 A.D.3d 1362, 1362, 875 N.Y.S.2d 401 ; Matter of Ariel C., 248 A.D.2d 976, 976, 669 N.Y.S.2d 1006, lv. denied 92 N.Y.2d 801, 677 N.Y.S.2d 71, 699 N.E.2d 431 ; see also CPLR 5520 [c] ).
We conclude that petitioner established by a preponderance of the evidence that the grandmother, who was a person legally responsible for the child (see Family Ct. Act § 1012[g] ), neglected the child (see § 1012[f][1][B] ). It is well established that “a child may be adjudicated to be neglected when a parent or caretaker ‘knew or should have known of circumstances which required action in order to avoid actual or potential impairment of the child and failed to act accordingly’ ” (Matter of Darcy Y. [Christopher Z.], 103 A.D.3d 955, 956, 959 N.Y.S.2d 566 ; see Matter of Wyatt YY. [Melissa OO.], 118 A.D.3d 1061, 1062, 987 N.Y.S.2d 474 ). The evidence at the hearing established that the grandmother knew that the mother was addicted to opiates and that the grandmother either illegally purchased suboxone for the mother or provided the mother with money knowing that the mother was going to use that money to buy suboxone herself. We have previously held that the misuse and illegal purchase of suboxone may support a finding of neglect (see Matter of Samaj B. [Towanda H.-B.-Wade B.], 98 A.D.3d 1312, 1313, 951 N.Y.S.2d 308 ). During this same period of time, the grandmother, who had informal custody of the child, allowed the mother to care for the child during the day. Moreover, the court concluded, based on the evidence at the hearing, that the grandmother was “feeding [the mother's] known drug addiction to keep the child with her without any court proceedings being involved.” Such evidence is sufficient to establish that the grandmother neglected the child (see Wyatt YY., 118 A.D.3d at 1062, 987 N.Y.S.2d 474 ; Matter of Stevie R. [Arvin R.], 111 A.D.3d 1078, 1079, 975 N.Y.S.2d 784 ; Matter of Alaina E., 33 A.D.3d 1084, 1086, 823 N.Y.S.2d 227 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.