                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   517660
________________________________

In the Matter of DEVON EE.,
   Alleged to be a
   Neglected Child.

SCHENECTADY COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent;

EVELYN EE.,
                    Appellant.              MEMORANDUM AND ORDER

(Proceeding No. 1.)
______________________________

In the Matter of AYESHA FF.,
                    Respondent,
      v

EVELYN EE.,
                    Appellant.

(Proceeding No. 2.)
________________________________


Calendar Date:   January 8, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                              __________


     Bruce E. Knoll, Albany, for appellant.

      Michael R. Godlewski, Schenectady County Department of
Social Services, Schenectady, for Schenectady County Department
of Social Services, respondent.

     Cynthia Feathers, Glens Falls, for Ayesha FF., respondent.
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     Alexandra Verrigni, Rexford, attorney for the child.

                           __________


Lahtinen, J.

      Appeals (1) from an order of the Family Court of
Schenectady County (Clark, J.), entered March 28, 2013, which (a)
granted petitioner's application, in proceeding No. 1 pursuant to
Family Ct Act article 10, to adjudicate respondent's child to be
neglected, and (b) granted petitioner's application, in
proceeding No. 2 pursuant to Family Ct Act article 6, for custody
of the subject child, and (2) from an order of said court,
entered August 22, 2013, which granted respondent visitation with
the subject child.

      Respondent (hereinafter the mother) is the mother of
several children, none of whom are still entrusted to her care.
The current proceedings involve Devon EE. (born in 2010). In the
early morning hours of October 10, 2011, the mother was found
allegedly highly intoxicated and passed out on a grassy area
between a city street and sidewalk with the child crying in a
stroller. The child was removed from her care and petitioner
Schenectady County Department of Social Services (hereinafter
DSS) commenced proceeding No. 1 alleging neglect. Shortly
thereafter, in November 2011, the mother's sister, petitioner
Ayesha FF. (hereinafter the aunt), who has custody of one of the
mother's older children, commenced proceeding No. 2 seeking
custody of Devon.

      Following a fact-finding hearing, Family Court found that
the mother had neglected the child. The court then held a
dispositional hearing in which it considered the aunt's Family Ct
Act article 6 petition for custody together with the Family Ct
Act article 10 petition. Family Court found extraordinary
circumstances and that it was in the child's best interests to
award custody to the aunt. The mother was provided with weekly
visitation and the right to receive information about the child.
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The mother appeals.1

      The mother argues that the evidence was insufficient to
establish neglect. DSS was required to prove by a preponderance
of the evidence "first, that a child'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 is a consequence of the failure of the parent . . .
to exercise a minimum degree of care in providing the child with
proper supervision" (Nicholson v Scoppetta, 3 NY3d 357, 368
[2004]). Proof presented, which Family Court found credible,
included testimony from a person who resided where the incident
occurred. He recalled seeing the mother lying face down in his
yard and hearing the child crying outside his house for about 45
minutes in a stroller located on the sidewalk. The police
officer who responded found the mother slumped over the stroller
and she smelled strongly of alcohol. Upon rousing the mother,
she was agitated, incoherent and slurring her speech. She fought
with police and fire department personnel and had to be
handcuffed and then placed on a stretcher for transport to the
hospital. The officer characterized the mother as highly
intoxicated. The mother's effort to minimize or explain her
condition was not credited by Family Court. Moreover, Family
Court noted the mother's past mental illness and substance abuse
issues, which had resulted in findings of neglect. There is a
sound and substantial basis in the record for Family Court's
neglect determination (see Matter of Wyatt YY. [Melissa OO.], 118
AD3d 1061, 1062 [2014]; Matter of Draven I. [Jenlyn I.], 86 AD3d
746, 747 [2011]; Matter of Kaleb U. [Heather V.-Ryan U.], 77 AD3d
1097, 1098 [2010]). As for the purported evidentiary errors at


     1
        We note that the attorney for the child submitted and
referenced a subsequent Family Court decision and orders entered
in November 2014 regarding, among other things, the mother's
youngest child. The mother moved to strike such orders as well
as the reference thereto. Although we deny the motion to strike
since we can take judicial notice of subsequent Family Court
orders (see e.g. Matter of Hannah U. [Patti U.], 110 AD3d 1258,
1260, n 5 [2013]), we nonetheless place no weight on such orders
in our analysis herein.
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the hearing, they were not preserved for review (see Matter of
Kimberly Z. [Jason Z.], 88 AD3d 1181, 1184 [2011]; Matter of
Darren HH. [Amber HH.], 68 AD3d 1197, 1198 [2009], lv denied 14
NY3d 703 [2010]).

      Next, the mother contends that the aunt failed to establish
extraordinary circumstances and thus it is error to award her
custody. "Family Ct Act § 1055-b permits Family Court to award
custody under Family Ct Act article 6 to a relative . . . as a
dispositional option in a Family Ct Act article 10 proceeding
when the court finds that (1) such an award is in the best
interests of the child, (2) the safety of the child will not be
jeopardized if the respondent in the article 10 proceeding is no
longer under supervision or receiving services, (3) the award
will provide the child with a safe and permanent home" and,
as relevant here where the parent does not consent, (4) "the
court finds that extraordinary circumstances exist" (Matter of
Arlene Y. v Warren County Dept. of Social Servs., 76 AD3d 720,
720-721 [2010], lv denied 15 NY3d 713 [2010] [internal quotation
marks and citations omitted]). The record confirms Family
Court's findings that the mother had a long history of substance
abuse and mental health issues, and she had failed to complete or
continue treatment for such conditions. She had previously been
the subject of indicated reports and neglect proceedings because
of her problems with alcohol and mental health issues. Two of
her older children had been removed from her custody. She
disregarded medical advice by consuming alcohol while taking
medication for epilepsy. She had a history of engaging in
violent behavior, including in front of her children. She did
not take responsibility for her actions, failed to follow through
on services or treatment, and placed her own needs above the
child's. One of her older children, a half sibling to Devon, has
lived with the aunt for much of her life. The aunt has provided
a stable home. According deference to Family Court's credibility
determinations, the record fully supports the finding of
extraordinary circumstances as well its determination that it is
in the best interests of the child for the aunt to have custody
(see Matter of Ettari v Peart, 110 AD3d 1256, 1257 [2013]).

      The mother's remaining arguments, including her contention
that she did not receive the effective assistance of counsel,
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have been reviewed and lack merit.

     Peters, P.J., McCarthy and Lynch, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
