SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1406 

CAF 10-02304 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ. 

 

 

IN THE MATTER OF ALEXIS H., DAKOTA H. AND 

JAYDEN H. 

---------------------------------------------- MEMORANDUM AND ORDER

ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES, 

PETITIONER-RESPONDENT; 

 

JENNIFER T., RESPONDENT-APPELLANT. 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (SARA J. LANGAN OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

GEORGE P. ALESSIO, ATTORNEY FOR THE CHILDREN, SYRACUSE, FOR ALEXIS H.,

DAKOTA H. AND JAYDEN H. 

 

Appeal from a corrected order of the Family Court, Onondaga

County (Michele Pirro Bailey, J.), entered November 10, 2010 in a

proceeding pursuant to Family Court Act article 10. The corrected

order adjudged that respondent had neglected the subject children. 

It is hereby ORDERED that the corrected order so appealed from is

unanimously modified on the law by vacating all references to the

September 2006 alcohol abuse and related treatment and as modified the

corrected order is affirmed without costs. 

Memorandum: Respondent mother appeals from a corrected order

adjudicating her three children to be neglected. We agree with the

mother that Family Court erred in including in the order references to

alcohol abuse and related treatment during September 2006. The

court’s oral decision made no reference to that alcohol abuse and

treatment. Where “an order and decision conflict, the decision

controls” (Matter of Christina M., 247 AD2d 867, 867, lv denied 91

NY2d 812). Inasmuch as “[s]uch an inconsistency may be corrected . .

. on appeal” (Spier v Horowitz, 16 AD3d 400, 401; see generally CPLR

5019 [a]), we modify the corrected order by vacating all references to

the September 2006 alcohol abuse and related treatment.

Contrary to the mother’s further contention, petitioner

established by a preponderance of the evidence that the mental or

emotional condition of each child had been or was in imminent danger

of becoming impaired as a result of the mother’s failure to exercise a

minimum degree of care (see Family Ct Act 1012 [f] [i]). 
-2- 1406 

CAF 10-02304 

Specifically, that imminent danger resulted from the mother’s failure

to maintain the family residence free from unsanitary or unsafe

conditions (cf. Matter of Erik M., 23 AD3d 1056), her long-standing

history of mental illness and noncompliance with treatment (see Matter

of Harmony S., 22 AD3d 972, 973), and her failure to seek treatment

for substance abuse (see Matter of Alim Lishen Laquan R., 63 AD3d

947). The evidence presented by petitioner, combined with the adverse

inference that the court was permitted to draw based on the mother’s

failure to testify (see Matter of Christine II., 13 AD3d 922, 923),

amply supported the court’s findings concerning, inter alia, the

imminency of the potential impairment to the mental and emotional

conditions of the children and the mother’s inability to exercise the

degree of care required to provide proper supervision (see Nicholson v

Scoppetta, 3 NY3d 357, 368-370). Actual impairment or injury is not

required but, rather, only “near or impending” injury or impairment is

required (id. at 369; see Matter of Markus MM., 17 AD3d 747, 748). 

Entered: December 30, 2011 Frances E. Cafarell

Clerk of the Court