In re Hailey XX.

• Decision Date: 02 April 2015
• Docket Number: 518006.
• Citation: 6 N.Y.S.3d 315,127 A.D.3d 1266,2015 N.Y. Slip Op. 02814
• Parties: In the Matter of HAILEY XX. and Others, Alleged to be Neglected Children. Cortland County Department of Social Services, Respondent; Angel XX., Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1266

6 N.Y.S.3d 315

2015 N.Y. Slip Op. 02814

In the Matter of HAILEY XX. and Others, Alleged to be Neglected Children. Cortland County Department of Social Services, Respondent; Angel XX., Appellant.

518006.

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

April 2, 2015.

Lisa K. Miller, McGraw, for appellant.

Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, for respondent.

Natalie B. Miner, Homer, attorney for the children.

Before: LAHTINEN, J.P., GARRY, ROSE and DEVINE, JJ.

Opinion

LAHTINEN, J.P.

Appeal from an order of the Family Court of Cortland County (Ames, J.), entered October 18, 2013, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate respondent's children to be neglected.

Respondent and her husband (hereinafter the father) are the parents of three children, born in 2008, 2010 and 2011. The oldest child had previously been temporarily removed from the parents' care in 2009 for neglect after the father broke the child's arm and neither parent sought medical care for the child. That incident resulted in the father being convicted of assault and, when he violated probation by perpetrating domestic violence upon respondent, he was incarcerated. While the father was incarcerated, respondent and her three children began living with respondent's new boyfriend. Respondent and her paramour were involved in repeated incidents of domestic violence—resulting in both being arrested in December 2012—and petitioner then commenced the instant neglect proceeding. Following a hearing, Family Court rendered a detailed written decision granting the petition finding, among other things, that respondent engaged in domestic violence with her paramour in the presence of the children, the home was filthy and the children were not provided basic hygiene, and respondent failed to keep the children in necessary early intervention services. Respondent appeals.

Prefatorily, we are unpersuaded by respondent's contention that Family Court erred in allowing petitioner to amend its petition to conform to the proof by adding allegations of poor hygiene and uncleanliness. “Family Court is vested with broad discretion, pursuant to Family Ct. Act § 1051(b), to allow an amendment of the pleadings ‘so long as a reasonable time to prepare and answer is given’ ” (Matter of Thomas JJ., 14 A.D.3d 953, 954, 788 N.Y.S.2d 508 [2005], quoting Matter of Nikole B., 263 A.D.2d 622, 623, 692 N.Y.S.2d 807 [1999] ). There was evidence of the prevailing unsanitary conditions, Family Court granted the motion to amend in June 2013, and the court reopened the proof and allowed respondent to present proof regarding such issue at a hearing in September 2013. Family Court did not abuse its discretion in permitting the amendment under these circumstances (see Matter of Thomas JJ., 14 A.D.3d at 954, 788 N.Y.S.2d 508 ; see also Matter of Ariel C.W.-H. [Christine W.], 89 A.D.3d 1438, 1439, 932 N.Y.S.2d 646 [2011] ; Matter of Kila DD., 28 A.D.3d 805, 806, 812 N.Y.S.2d 700 [2006] ).

Respondent's primary argument is that petitioner failed to prove that she neglected her children. To establish neglect, petitioner must “demonstrate [ ], by a preponderance of evidence, that the child[ren]'s physical, mental or emotional condition was harmed or is in imminent danger of such harm as a result of the parent's failure to exercise a minimum degree of care” (Matter of Xavier II., 58 A.D.3d 898, 899, 872 N.Y.S.2d 561 [2009] ). “[I]mminent danger of harm must be near or impending ... [and] there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child[ren]'s impairment or imminent danger of impairment” (Matter of Lillian SS. [Brian SS.], 118 A.D.3d 1079, 1080, 987 N.Y.S.2d 482 [2014], lv. dismissed 24 N.Y.3d 936, 993 N.Y.S.2d 547, 17 N.E.3d 1144 [2014] [internal quotation marks and citations omitted] ). “In determining whether a parent is exercising a minimum degree of care, the parent's behavior must be evaluated objectively, in light of whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances” (Matter of Samuel DD. [Margaret DD.], 81 A.D.3d 1120, 1122, 916 N.Y.S.2d 366 [2011] [internal quotation marks, brackets and citations omitted] ). “We accord...