State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 2, 2015 518006 

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In the Matter of HAILEY XX. 

and Others, Alleged to be 

Neglected Children.

CORTLAND COUNTY DEPARTMENT OF

SOCIAL SERVICES, MEMORANDUM AND ORDER

Respondent;

ANGEL XX.,

Appellant.

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Calendar Date: February 20, 2015

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

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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.

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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
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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 AD3d 953,

954 [2005], quoting Matter of Nikole B., 263 AD2d 622, 623

[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 AD3d at 954; see also Matter of Ariel C.W.-H. [Christine

W.], 89 AD3d 1438, 1439 [2011]; Matter of Kila DD., 28 AD3d 805,

806 [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
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Xavier II., 58 AD3d 898, 899 [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 AD3d 1079, 1080 [2014], lv dismissed 24 NY3d

936 [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 AD3d 1120, 1122 [2011] [internal

quotation marks, brackets and citations omitted]). "We accord

deference to Family Court's credibility determinations and will

not disturb its findings if they are supported by a sound and

substantial basis in the record" (Matter of Thomas M. [Susan M.],

81 AD3d 1108, 1109 [2011] [citations omitted]; see Matter of

Diane C. v Richard B., 119 AD3d 1091, 1093 [2014]). 

Respondent repeatedly became involved in and remained in

abusive situations, and she failed to take steps to protect the

children from witnessing the resulting domestic violence. 

Respondent and her paramour had several incidents of domestic

violence that resulted in police being summoned, and then

respondent would not cooperate in limiting the paramour's access

to the children via a protective order or pressing charges. 

Although the paramour was the initial aggressor in most

incidents, Family Court also credited the proof that respondent

pursued and perpetrated violent acts on the paramour in the

presence of the children. In addition, witnesses who went to the

apartment where respondent resided recalled seeing the children

and the residence in a very unclean condition including, among

other things, food and dirt on the floor, cigarette butts and

ashtrays on the floor, clothes thrown throughout the apartment,

the youngest child in a sleeper encrusted with food, bottles with

curdled milk, diapers on all the children that needed to be

changed and that smelled so strongly that they were characterized

as "atrocious," and children not appropriately dressed and so

dirty that caseworkers took turns trying to clean them. There

was also proof that the children needed – and arrangements had

been made for – early intervention services, but respondent
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failed to take reasonable steps to keep the children in the

necessary early intervention services for a period of six months

during 2012. Accepting Family Court's credibility determinations

and viewing the evidence cumulatively, there was sufficient proof

to support the neglect determination (see e.g. Matter of Heyden

Y. [Miranda W.], 119 AD3d 1012, 1014 [2014]). 

Garry, Rose and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court