In re Emmanuel J.
In the Matter of EMMANUEL J. and Others, Alleged to be Neglected Children. FULTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; MAXIMUS L., Appellant. (And Three Other Related Proceedings.) [52 NYS3d 154]—
Clark, J. Appeal from an order of the Family Court of Fulton County (Skoda, J.), entered November 2, 2015, which granted petitioner‘s applications, in four proceedings pursuant to
Respondent
Following a fact-finding hearing, Family Court adjudged the children to have been neglected by respondent. The matter then proceeded to a dispositional hearing, which was conducted over two days. At the conclusion of the first day, Family Court temporarily placed the children in the care and custody of petitioner pending final disposition of the neglect petitions. Following the dispositional hearing, Family Court issued a dispositional order continuing the children‘s placement in the care and custody of petitioner until the completion of a permanency hearing. Respondent appeals.
On appeal, respondent curiously does not advance a wholesale challenge to Family Court‘s determination that respondent
“[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that [the] child[ren]‘s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and[,] second, that the actual or threatened harm to the child[ren] is a consequence of the failure of the . . . caretaker to exercise a minimum degree of care in providing the child[ren] with proper supervision or guardianship” (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see
Turning first to Phoenix, a social worker at Phoenix‘s school testified that Phoenix “often” came to school “unkempt,” dressed in “ill-fitting” clothing or in clothes that were inappropriate for the weather and smelling of urine or body odor. She testified that “typically” Phoenix would be sent to the school nurse to address her hygiene and, depending on the circumstances, would be bathed, given appropriate clothing or directed to brush her teeth. School records confirmed that, throughout the 2014-2015 school year, Phoenix was sent to the nurse‘s office to
Further, the record demonstrated that Phoenix‘s poor hygiene while in the care of respondent was negatively affecting her emotionally and academically. The school social worker testified that, in addition to missing school because she repeatedly had head lice, Phoenix would often cry when the issue of her hygiene was raised, state that she was not supposed to visit the nurse‘s office and worry that she would get in trouble with respondent and her mother for doing so. In addition, the school social worker stated that faculty noticed a marked improvement in Phoenix‘s demeanor, confidence and academic performance when she was in petitioner‘s care, as opposed to respondent‘s care. Together, the foregoing evidence clearly demonstrated that Phoenix‘s poor hygiene was an ongoing issue, not an isolated incident, of which respondent was aware and failed to exercise a minimum degree of care. Thus, Family Court‘s finding that respondent‘s failure to “comprehend and adequately address the needs” of Phoenix created an imminent risk of harm to her physical and emotional safety is supported by a sound and substantial basis in the record (see Matter of David II., 49 AD3d 1093, 1094-1095 [2008]; Matter of Aiden L., 47 AD3d at 1090-1091).
As for Sophia, “[a] child can be declared to be neglected as a result of the failure of [his or her caretaker] to act when the [caretaker] knew or should have known of circumstances which required action in order to avoid actual or potential impairment of the child” (Matter of Alaina E., 33 AD3d 1084, 1086 [2006]; accord Matter of David II., 49 AD3d at 1094). Sophia‘s pediatrician testified that Sophia has sleep apnea and hypoxemia, which require the use of an apnea monitor and oxygen therapy while she sleeps. Petitioner‘s caseworker testified that, on Friday, May 8, 2015, she heard and observed Sophia struggling to breathe while she slept in a “bouncer chair” in the kitchen in view of respondent. The caseworker asserted that Sophia was not using her apnea monitor or oxygen and that this was not the first time that she had observed the child sleeping without her apnea monitor. She stated that, upon alerting respondent to Sophia‘s distressed breathing, respon-dent
Respondent further argues that Family Court‘s dispositional determination is not supported by a sound and substantial basis in the record.2 “[A] dispositional order must reflect a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances, and must be supported by a sound and substantial basis in the record” (Matter of Alaina E., 33 AD3d at 1087; accord Matter of Gloria DD. [Brenda DD.], 99 AD3d 1044, 1045 [2012]; Matter of Alexis AA. [John AA.], 97 AD3d 927, 929 [2012]). The record established that, despite the provision of in-home intensive prevention services to the family twice weekly, the home remained in an unsafe and unsanitary condition. As established by the evidence, the home continued to overwhelmingly smell of urine and, in addition to other unhygienic conditions, suffer from a cockroach infestation. The record further demonstrated that those of the children who attended school were repeatedly treated for head lice and that some of those children performed
better academically when placed outside of the home. While there was some evidence that respondent had made efforts to ameliorate the state of the home, the record amply demonstrated that the home nonetheless continued to be an uninhabitable environment for the children. Accordingly, we find that Family Court‘s dispositional determination is supported by a sound and substantial basis in the record (see Matter of Alexis AA. [John AA.], 91 AD3d 1073, 1074 [2012], lv denied 18 NY3d 809 [2012]).
Finally, inasmuch as respondent did not move for the removal of the attorney for the children, he failed to preserve his contentions that the attorney for the children improperly substituted her judgment for that of Phoenix and Emmanuel, that she should have withdrawn her representation of these two children when they expressed a desire to remain in the family home and that, overall, she failed to adequately represent the children (see Matter of Elniski v Junker, 142 AD3d 1392, 1393 [2016]; Matter of Swinson v Dobson, 101 AD3d 1686, 1687 [2012], lv denied 20 NY3d 862 [2013]; Matter of Juliet M., 16 AD3d 211, 212 [2005]; Matter of Nicole VV., 296 AD2d 608, 613 [2002], lv denied 98 NY2d 616 [2002]). Were such contentions properly raised in Family Court and, thus, preserved, we would find them to be without merit. While the attorney for the children has a duty “to advocate and express the children‘s wishes to the court,” where, as here, “the children‘s wishes would likely ‘result in a substantial risk of imminent, serious harm to the child[ren],‘” the attorney for the children may advocate a position that is contrary to the children‘s express wishes (Matter of Alyson J. [Laurie J.], 88 AD3d 1201, 1203 [2011], lv denied 18 NY3d 803 [2012], quoting
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the order is affirmed, without costs.