In re Ja'Sire FF.
| Decision Date | 02 June 2022 |
| Docket Number | 529358 |
| Citation | 2022 NY Slip Op 03551 |
| Parties | In the Matter of Ja'Sire FF. and Another, Alleged to be Neglected Children. Chemung County Department of Social Services, Respondent; Jalyssa GG., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Calendar Date: April 25, 2022
Lisa K. Miller, McGraw, for appellant.
James E. DeFilippo, County Attorney, Elmira (M. Hyder Hussain of counsel), for respondent.
Andrea J. Mooney, Ithaca, attorney for the children.
Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.
Appeals from two orders of the Family Court of Chemung County (Tarantelli, J.), entered January 9, 2020, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.
Respondent is the mother of a son (born in 2015) and a daughter (born in 2017). In April 2018, the children's maternal grandmother (hereinafter the grandmother) filed a custody petition seeking joint custody of the son. Shortly thereafter, the daughter's father, John EE. (hereinafter the father) filed a petition seeking emergency custody of the daughter. From April 2018 through November 2018, respondent, the grandmother and the father filed numerous custody and violation petitions against each other. Although most of these petitions were dismissed, Family Court ultimately granted temporary custody of the daughter to the father and temporary custody of the son to the grandmother. In November 2018, following an order by Family Court to conduct an investigation pursuant to Family Ct Act § 1034, petitioner filed a neglect petition against respondent pursuant to Family Court's direction.
Petitioner alleged that the children were neglected by respondent based on her "history of displaying verbal and physically aggressive behavior in the presence of her children" and expressly described two instances where respondent's conduct required police intervention. Following a removal hearing, Family Court modified the temporary custody order placing the son with the grandmother under Family Ct Act article 6 into a placement under Family Ct Act article 10. Family Court then held a fact-finding hearing, ultimately finding that the children were neglected by respondent. Following a dispositional hearing, the temporary placements of the children were continued. Respondent appeals.
Respondent contends that Family Court's finding of neglect is not supported by a sound and substantial basis in the record. We disagree. "Neglect is established when a preponderance of the evidence shows that the children's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and that the actual or threatened harm to the children results from the respondent's failure to exercise a minimum degree of care in providing the children with proper supervision or guardianship" (Matter of Jaxxon WW. [Donald XX.], 200 A.D.3d 1522, 1523 [2021] [internal quotation marks, brackets and citations omitted]; see Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004]). "In determining whether a parent has failed to exercise a minimum degree of care, the dispositive inquiry is whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances" (Matter of Lexie CC. [Liane CC.], 190 A.D.3d 1165, 1165 [2021] [internal quotation marks, brackets and citations omitted]). "Even a single act of domestic violence may be sufficient to establish neglect if the [children are] present for such violence and [are] visibly upset and frightened by it" (Matter of Kaitlyn SS. [Antonio UU.], 184 A.D.3d 961, 963 [2020] [internal quotation marks and citations omitted]; see Matter of Cherish C. [Shanikwa C.], 102 A.D.3d 597, 598 [2013]). In conducting our review, "Family Court's factual findings and credibility determinations are accorded great weight in such a proceeding and will not be disturbed on appeal unless they lack a sound and substantial basis in the record" (Matter of Nathanael E. [Melodi F.], 160 A.D.3d 1075, 1076 [2018]; see Matter of Jaxxon WW. [Donald XX.], 200 A.D.3d at 1523).
At the fact-finding hearing, petitioner presented the testimony of a caseworker with Child Protective Services who became involved with the case in either January or February 2018 after receiving a Family Assessment Response referral. [1] The caseworker testified that she had a meeting with respondent and recommended that respondent obtain mental health counseling for anger management, but respondent refused to do so and the referral was closed. The caseworker testified she had no further contact with respondent until a hotline report was received in June 2018, which alleged that respondent left the children in the City of Binghamton, Broome County with an unknown person. The caseworker testified that, while she was investigating this report, there were two incidents during which respondent became enraged. The first incident occurred a few days after the report was received, when respondent called the caseworker to her residence because the grandmother obtained temporary custody of the son and was attempting to pick him up. According to the caseworker, when she explained that respondent had to comply with the order, respondent became upset and started yelling, cursing and making threats to cause the caseworker bodily harm - to the point that the police were called to deescalate the situation and facilitate the custody exchange of the son to the grandmother. The caseworker described the son as having become "very visibly upset" and "hysterical" as he began to cry and shake. The second incident occurred in August 2018, when respondent became upset at the grandmother during a custody exchange and threw a coat hanger at the grandmother, striking her on the shoulder; the grandmother was carrying the daughter at the time she was struck.
The grandmother also testified at the fact-finding hearing, corroborating the caseworker's testimony about the two incidents and adding additional details as to the second incident. Specifically, the grandmother testified that, before throwing the hanger during the August 2018 exchange, respondent was screaming at her and telling her to "go die" and that she needs to kill herself. The grandmother further explained that, had she not turned around, the thrown hanger would have hit the daughter in the back of the head. Relating to the substance of the hotline report, the grandmother testified that she had received a telephone call at 4:00 a.m. telling her that she needed to drive to Binghamton to pick up the children, otherwise they would be left in a hotel. The grandmother further explained that, when she arrived at a fast-food parking lot to pick up the children, they were with individuals unknown to the grandmother and respondent had already left on a bus trip to New York City.
A caseworker with petitioner's Children and Family Services unit (hereinafter CFS) also testified about her in-person interactions with respondent, stating that respondent swore, yelled and became "verbally aggressive" toward her on several occasions when the caseworker tried to discuss topics related to her case - including in the presence of the children. Several members of respondent's family testified - some corroborating the testimony of the June 2018 incident and respondent's angry outbursts in front of the children, others disagreeing or limiting the outbursts to only an isolated incident or not at all. For her part, respondent testified that she was participating in mental health services to deal with her anger management and intended to complete same.
In our view, Family Court's finding that petitioner established neglect by a preponderance of the evidence is supported by a sound and substantial basis in the record (see Matter of Nathanael E. [Melodi F.], 160 A.D.3d at 1076). There is ample evidence in the record that respondent's anger issues and violent outbursts occurred in the presence of her children, were witnessed by them and caused them to become visibly upset (see Matter of Maggie YY. [Lisa ZZ.] 172 A.D.3d 1562, 1563 [2019]). This included an incident where respondent threw a coat hanger at the grandmother during an exchange,...
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