Opinion
2014-11-21
In the Matter of JEROMY J. and Andre J. Erie County Department of Social Services, Petitioner–Respondent; Latanya J., Respondent–Appellant, and Andrew J., Respondent.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for The Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN AND DeJOSEPH, JJ.
MEMORANDUM:
In this neglect proceeding pursuant to Family Court Act article 10, respondent mother contends that Family Court's determination that she neglected her children, issued following a fact-finding hearing, is not supported by legally sufficient evidence. Inasmuch as the petition alleged that the mother neglected the children in violation of Family Court Act § 1012(f)(i)(B), the burden was on petitioner to “ demonstrate by a preponderance of the evidence ‘first, that [the] child[ren]'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[ren] is a consequence of the failure of the parent ... to exercise a minimum degree of care in providing the child[ren] with proper supervision or guardianship’ ” (Matter of Ilona H. [Elton H.], 93 A.D.3d 1165, 1166, 940 N.Y.S.2d 406, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840; see§§ 1012[f][i][B]; 1046[b][i] ). Furthermore, the trial 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 of Kaleb U. [Heather V.-Ryan U.], 77 A.D.3d 1097, 1098, 908 N.Y.S.2d 773; see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401, 963 N.Y.S.2d 895, lv. denied21 N.Y.3d 862, 2013 WL 4516332). Here, based upon the evidence presented by petitioner, we agree with petitioner and the Attorney for the Children that there is a sound and substantial basis in the record for the court's finding that “the child[ren were] in imminent danger of impairment as a result of [the mother's] failure to exercise a minimum degree of care” in providing proper supervision or guardianship (Matter of Paul U., 12 A.D.3d 969, 971, 785 N.Y.S.2d 767; see Matter of Christopher L., 286 A.D.2d 627, 628, 730 N.Y.S.2d 110, lv. dismissed97 N.Y.2d 716, 740 N.Y.S.2d 689, 767 N.E.2d 146; see generally Matter of Trina Marie H., 48 N.Y.2d 742, 743, 422 N.Y.S.2d 659, 397 N.E.2d 1327).
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 Gada B. [Vianez V.], 112 A.D.3d 1368, 1369, 978 N.Y.S.2d 514; see generally Family Ct. Act § 1051[d] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.