SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
204
CAF 14-01946
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.
IN THE MATTER OF ASHLEY B. AND KAMAU B.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
MEMORANDUM AND ORDER
LAVERN B., RESPONDENT-APPELLANT.
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IN THE MATTER OF MICHAEL F.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
LAVERN B., RESPONDENT-APPELLANT.
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IN THE MATTER OF CAMERON N.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
LAVERN B., RESPONDENT-APPELLANT.
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IN THE MATTER OF WILLIE B.,
PETITIONER-RESPONDENT,
V
LAVERN B., RESPONDENT-APPELLANT,
AND ERIE COUNTY DEPARTMENT OF SOCIAL
SERVICES, RESPONDENT-RESPONDENT.
ALAN BIRNHOLZ, LAKE WORTH, FLORIDA, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT ERIE COUNTY
DEPARTMENT OF SOCIAL SERVICES AND RESPONDENT-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
SHEILA SULLIVAN DICKINSON, ATTORNEY FOR THE CHILDREN, BUFFALO.
BERNADETTE HOPPE, ATTORNEY FOR THE CHILD, BUFFALO.
Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered October 2, 2014 in proceedings pursuant to
-2- 204
CAF 14-01946
Family Court Act articles 6 and 10. The order, inter alia, determined
that respondent Lavern B. neglected Ashley B. and Kamau B. and
derivatively neglected Michael F. and Cameron N.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act
articles 6 and 10, respondent mother appeals from an order finding
that she neglected her two older children and derivatively neglected
the other two children. We reject the mother’s contention that Family
Court’s findings of neglect and derivative neglect are not supported
by a preponderance of the evidence (see § 1046 [b] [i]). It is well
settled that section 1012 (f) (i), which defines neglect, “imposes two
requirements for a finding of neglect . . . First, there must be proof
of actual (or imminent danger of) physical, emotional or mental
impairment to the child . . . Second, any impairment, actual or
imminent, must be a consequence of the parent’s failure to exercise a
minimum degree of parental care” (Matter of Afton C. [James C.], 17
NY3d 1, 9 [internal quotation marks omitted]). Here, a preponderance
of the evidence supports the court’s finding that, among other things,
the mother forced the two older children to leave the house for days
at a time without planning for their care, which repeatedly resulted
in their living in shelters or on the streets with no supervision,
thereby placing them in imminent risk of harm (see Matter of Debraun
M., 34 AD3d 587, 587, lv dismissed 8 NY3d 955; see also Matter of
Chantel ZZ., 279 AD2d 669, 671). Although the mother testified that
she did not force the older children to leave the home for extended
periods, “[w]here, as here, issues of credibility are presented, the
hearing court’s findings must be accorded great deference” (Matter of
Todd D., 9 AD3d 462, 463; see Matter of Holly B. [Scott B.], 117 AD3d
1592, 1592), and we find no reason to reject the court’s credibility
determinations.
Furthermore, that evidence “supports the finding of derivative
neglect with respect to [the two younger children inasmuch as] the
impaired level of parental judgment . . . shown by [the mother’s]
behavior created a substantial risk” of imminent danger to the younger
children as well (Matter of Peter C., 278 AD2d 911, 911 [internal
quotation marks omitted]; see Matter of Kennedie M. [Douglas M.], 89
AD3d 1544, 1545, lv denied 18 NY3d 808; Matter of Devre S. [Carlee
C.], 74 AD3d 1848, 1849). The mother’s actions “ ‘demonstrated a
fundamental defect in [her] understanding of the duties and
obligations of parenthood and created an atmosphere detrimental to the
physical, mental and emotional well-being of’ ” the younger children
(Matter of Cory S. [Terry W.], 70 AD3d 1321, 1322).
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court