In re Daniella HH.

236 A.D.2d 715, 654 N.Y.S.2d 200, 1997 N.Y. App. Div. LEXIS 1473

Opinions

Spain, J.

Appeal from an order of the Family Court of Albany County (Duggan, J.), entered February 16, 1996, which partially dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 10, and adjudicated one of respondent’s children to be neglected.

In November 1995, petitioner filed a neglect petition pursuant to Family Court Act article 10 alleging that respondent neglected her two children, Daniella HH. (born in 1994) and Max II. (born in 1995). The petition alleged, inter alia, that in mid-November 1995 respondent brought Max to a local hospital emergency room suffering from severe dehydration, acutely toxic high sodium levels and malnutrition; he was subsequently diagnosed as suffering from nonorganic failure to thrive. The petition also alleged that respondent had unstable housing and had been offered services in the past but failed to cooperate and, further, that respondent admitted feeling stressed and overwhelmed by the care of her two children and feared that she might hurt Daniella and that she was not safe in her care.

Footnotes

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* After a fact-finding hearing, Family Court found that respondent neglected Max by failing to provide adequate medical care for him, but found the evidence presented at the hearing was insufficient to show that Daniella had been neglected; the court dismissed that portion of the petition pertaining to Daniella. Petitioner now appeals from that part of Family Court’s order which dismissed its application to adjudicate Daniella as a neglected child.

We affirm. Although Family Court failed to set forth the reasoning on which it based its decision, upon our review of the record we agree that the evidence adduced at the hearing was insufficient to support a finding that Daniella was a neglected child. Significantly the record reveals that the hearing was primarily focused on respondent’s neglect of Max. Although respondent told a mental health evaluator that she gets stressed out and could hit Daniella, the evaluator testified that respondent stated that she would never harm Daniella nor had she ever struck her. Further, respondent’s testimony that she told a caseworker she would harm her daughter was contradicted by her subsequent testimony that she would never harm her daughter and that she no longer feels the frustration she once felt. In explaining the contradiction respondent stated that she was confused when initially questioned in the waiting room at the hospital; notably, no testimony or evidence was introduced that respondent ever physically or emotionally harmed Daniella. Moreover, there is absolutely no evidence in the record of any medical or emotional problems or needs with respect to Daniella.

It is beyond cavil that the hearing court’s determination regarding the credibility of a witness is entitled to great deference and will only be disturbed in the absence of a basis in the record (see, Matter of Guy UU., 200 AD2d 852; Matter of Esther CC., 194 AD2d 949). Here, the limited testimony elicited at the hearing regarding the alleged neglect of Daniella was not consistent and Family Court had a superior vantage point from which to determine the credibility of the witnesses. In our view, the record supports Family Court’s determination regarding the absence of any direct evidence that respondent neglected Daniella.

Next, we reject petitioner’s contention that Max’s medical condition when he was admitted to the hospital is compelling evidence of respondent’s gross and profound neglect of Daniella. Although Family Court Act § 1046 (a) (i) allows evidence of abuse or neglect of one sibling to be considered in determining whether other children in the household were abused or neglected (see, Matter of Christina Maria C., 89 AD2d 855), the statute does not mandate a finding of derivative neglect (see, Matter of Rasheda S., 183 AD2d 770). Derivative findings of neglect should be entered where the evidence as to the child found to be neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in respondent’s care (see, Matter of Vincent M., 193 AD2d 398, 404; see also, Family Ct Act § 1012 [f| [i]).

The record reveals that Max, unlike his sister, had health problems from the time of his birth; he was a problem eater, had a formula intolerance, and suffered from both nasal congestion and mild gastroesophageal reflux. The record further reveals that upon admission to the hospital Max was extremely ill and was suffering from nonorganic failure to thrive. Although Max’s condition properly supported a finding that he was a neglected child, in our view his condition does not support a finding of derivative neglect regarding Daniella. Further, given the credibility determinations made by Family Court, the record does not support a finding that respondent suffered from a fundamental defect in her understanding of parenting, nor does it support a finding that respondent will place Daniella in substantial risk of harm (cf., Matter of Dutchess County Dept. of Social Servs. [Douglas E., III] v Douglas E., Jr., 191 AD2d 694; see also, Matter of Rasheda S., supra; Matter of Lynelle W., 177 AD2d 1008). Notably, Family Court specifically acknowledged that it was cognizant of Family Court Act § 1046 (a) (i) in reaching its conclusion. Accordingly, we will not disturb Family Court’s order.

White, J. P., Casey and Carpinello, JJ., concur.

Prior to the petition being filed, respondent consented to the temporary removal of the children pursuant to Family Court Act § 1021.