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Dutchess Cnty. Dep't of Cmty. & Family Servs. v. Cymon M. (In re Jaheem M.)

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 10, 2019
174 A.D.3d 610 (N.Y. App. Div. 2019)

Opinion

2018–12378 Docket No. N–03803–17

07-10-2019

In the MATTER OF JAHEEM M. (Anonymous). Dutchess County Department of Community and Family Services, respondent; v. Cymon M. (Anonymous), appellant.

Kelley M. Enderley, Poughkeepsie, NY, for appellant. James Fedorchak, County Attorney, Poughkeepsie, N.Y. (Susan L. Flynn of counsel), for respondent. Karen C. Palumbo, Beacon, NY, attorney for the child.


Kelley M. Enderley, Poughkeepsie, NY, for appellant.

James Fedorchak, County Attorney, Poughkeepsie, N.Y. (Susan L. Flynn of counsel), for respondent.

Karen C. Palumbo, Beacon, NY, attorney for the child.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that the father neglected the subject child by failing to provide stable housing for the child and engaging in educational neglect of the child. After fact-finding and dispositional hearings, the Family Court found that the father neglected the child and, inter alia, directed that the father undergo a mental health evaluation. The father appeals. The issues raised by the father on his appeal from the order of fact-finding (see Matter of Jaheem M. , 174 A.D.3d 609, 101 N.Y.S.3d 887, 2019 WL 3046057 [Appellate Division Docket No. 2018–02614 ; decided herewith] ), are brought up for review and have been considered on his appeal from the order of disposition.

As relevant here, a neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent ... to exercise a minimum degree of care ... in supplying the child with adequate food, clothing, shelter or education ... though financially able to do so or offered financial or other reasonable means to do so" ( Family Ct. Act § 1012[f][i][A] ). The petitioner must establish neglect based on a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; Matter of Nicole V. , 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). Here, contrary to the father's contentions, the petitioner established, by a preponderance of the evidence, that the father neglected the child by failing to provide the child with adequate shelter although the petitioner offered the father financial support and other reasonable means to do so. The evidence demonstrated that the petitioner made extensive efforts to assist the father through offering financial and counseling support so that he could find suitable housing for himself and the child, that the father failed to conduct his own apartment searches and unreasonably rejected housing options provided by the agency, and that the father entirely relied upon foster care to provide housing for the child (see Matter of Clayton OO. [Nikki PP.] , 101 A.D.3d 1411, 1412, 956 N.Y.S.2d 328 ). The father's failure to provide adequate shelter, by itself, is sufficient to support the finding of neglect (see Matter of Alexander L. [Andrea L.] , 99 A.D.3d 599, 599, 952 N.Y.S.2d 550 ; Matter of Tia B. , 257 A.D.2d 366, 683 N.Y.S.2d 44 ).

"The paramount concern in a dispositional hearing is the best interests of the child" ( Matter of Phillips N. [Joy N.] , 104 A.D.3d 690, 691, 961 N.Y.S.2d 216 [internal quotation marks omitted]; see Matter of Star Leslie W. , 63 N.Y.2d 136, 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824 ). "The factors to be considered in making the determination include the parent or caretaker's capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect" ( Matter of Eliora B. [Kennedy B.] , 146 A.D.3d 772, 774, 45 N.Y.S.3d 144 [internal quotation marks omitted]; see Matter of Phillips N. [Joy N.] , 104 A.D.3d at 691, 961 N.Y.S.2d 216 ). Here, the order of disposition, which required the father to undergo a mental health evaluation, was in the child's best interests (see Matter of Dazahnae S. [Derek S.] , 126 A.D.3d 802, 803, 2 N.Y.S.3d 903 ; Matter of Salvatore M. [Nicole M.] , 104 A.D.3d 769, 770, 961 N.Y.S.2d 292 ).

MASTRO, J.P., BALKIN, IANNACCI and CHRISTOPHER, JJ., concur.


Summaries of

Dutchess Cnty. Dep't of Cmty. & Family Servs. v. Cymon M. (In re Jaheem M.)

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Jul 10, 2019
174 A.D.3d 610 (N.Y. App. Div. 2019)
Case details for

Dutchess Cnty. Dep't of Cmty. & Family Servs. v. Cymon M. (In re Jaheem M.)

Case Details

Full title:In the Matter of Jaheem M. (Anonymous). Dutchess County Department of…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jul 10, 2019

Citations

174 A.D.3d 610 (N.Y. App. Div. 2019)
107 N.Y.S.3d 34
2019 N.Y. Slip Op. 5535

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