        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

845
CAF 12-00352
PRESENT: SCUDDER, P.J., SMITH, CENTRA, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF AUSTIN M. AND ANNA M.
--------------------------------------------
OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES,     MEMORANDUM AND ORDER
PETITIONER-APPELLANT;

DALE M., RESPONDENT-RESPONDENT.


NELSON LAW FIRM, MEXICO (ALLISON J. NELSON OF COUNSEL), FOR
PETITIONER-APPELLANT.

THE FIX LAW FIRM, OSWEGO (ROBERT H. FIX OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

GLORIA FLORES BALDWIN, ATTORNEY FOR THE CHILDREN, BALDWINSVILLE, FOR
AUSTIN M. AND ANNA M.


     Appeal from an order of the Family Court, Oswego County (Kimberly
M. Seager, J.), entered February 3, 2012 in a proceeding pursuant to
Family Court Act article 10. The order, insofar as appealed from,
denied that part of petitioner’s application seeking to remove Anna M.
from the custody of respondent, granted respondent unsupervised
visitation with Austin M., and determined that petitioner did not make
reasonable efforts to prevent the need for removal of the children
from respondent’s care but that the lack of such efforts was
appropriate under the circumstances.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law and the facts without costs, that part
of the application seeking removal of the child Anna M. is granted,
respondent is granted supervised visitation with the children, and the
matter is remitted to Family Court, Oswego County, for further
proceedings in accordance with the following Memorandum: Petitioner
commenced this neglect proceeding against respondent father and sought
emergency removal of the children, Austin M. and Anna M. Following a
hearing pursuant to Family Court Act § 1027, Family Court granted the
application with respect to Austin but not Anna, and granted the
father unsupervised visitation with Austin. Petitioner appeals, and
we now reverse the order insofar as appealed from.

     In a hearing held pursuant to Family Court Act § 1027 for the
temporary immediate removal of a child from a home, “if the court
finds that removal is necessary to avoid imminent risk to the child’s
life or health, it shall remove or continue the removal of the child”
(§ 1027 [b] [i]). The statute further provides that, “[i]n
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determining whether removal or continuing the removal of a child is
necessary to avoid imminent risk to the child’s life or health, the
court shall consider and determine in its order whether continuation
in the child’s home would be contrary to the best interests of the
child” (§ 1027 [b] [ii]). Thus, the court first must determine
whether there is imminent risk to the child’s life or health and, if
there is, the court must then determine whether it is in the best
interests of the child to be removed from the home or whether the risk
to the child “can be mitigated by reasonable efforts to avoid removal”
(Nicholson v Scoppetta, 3 NY3d 357, 378). The court “must balance
th[e] risk [of serious harm to the child] against the harm removal
might bring, and it must determine factually which course is in the
child’s best interests” (id.).

     Initially, we note that it appears that the court applied a best
interests analysis only and did not first make a determination whether
the children were at imminent risk of harm, as required by the
statute. The court removed Austin from the father’s home upon
determining that it was in Austin’s best interests to allow the father
time to engage in necessary anger management services. Nevertheless,
the record is sufficient to enable this Court to make our own
findings, without the need for remittitur (see generally Matter of
Charity A., 38 AD3d 1276, 1276). We agree with petitioner that there
is a sound and substantial basis in the record for a determination
that Austin was at imminent risk of harm (see generally Matter of
Thurston v Skellington, 89 AD3d 1520, 1520). The evidence at the
hearing was overwhelming that the father slapped Austin in the face
with an open hand with such significant force that the child had marks
on his face the next morning. The court’s finding that it was not
clear who caused the injury to Austin is not supported by the record.
The medical testimony established that an adult caused the injury to
the child, and thus only the father or his girlfriend could have
caused the injury inasmuch as they were the only two adults who were
with the child during the relevant time period. While Austin at first
stated that his four-year-old sister hit him, he later stated that his
father hit him and told Austin to say that his sister did it. The
father initially gave various explanations for the injury, then
admitted that he could have inflicted the injury when he “blacked
out,” and eventually admitted that he did indeed slap the child. The
testimony at the hearing further established that the father often
lost his temper with the children, particularly with Austin, and that
Austin has had prior instances of bruising on him. Indeed, a
caseworker for petitioner has seen Austin cower in the father’s
presence when the father became angry, and he pleaded with the father
not to hit him. We therefore make the requisite determination that
Austin was at imminent risk of harm (see generally Nicholson, 3 NY3d
at 378) and, as noted, the court has made the requisite determination
that it was in his best interests to be removed from the home.

     With respect to the child Anna, petitioner alleged that Anna was
derivatively neglected and also sought her removal. It is well
settled that a finding of derivative neglect is appropriate when a
parent “ ‘demonstrate[s] a fundamental defect in [his or her]
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understanding of the duties and obligations of parenthood and
create[s] an atmosphere detrimental to the physical, mental and
emotional well-being of [his or her children]’ ” (Matter of Derrick
C., 52 AD3d 1325, 1326, lv denied 11 NY3d 705; see Matter of Darren
HH., 68 AD3d 1197, 1197-1198, lv denied 14 NY3d 703). We agree with
petitioner that the record establishes that Anna was also at imminent
risk of harm and that such risk could not be mitigated by reasonable
efforts to avoid removal (see Matter of Serenity S., 89 AD3d 737, 739;
Matter of Xavier J., 47 AD3d 815, 816). While the evidence at the
hearing did not establish that Anna, unlike Austin, sustained any
bruising, “[t]he Family Court Act does not require actual injury as a
condition precedent to a finding of imminent risk” (Matter of Erick
C., 220 AD2d 282, 283).

     We further agree with petitioner that the court erred in allowing
the father to have unsupervised visitation with Austin. A parent
should be granted “reasonable and regularly scheduled visitation
unless the court finds that the child’s life or health would be
endangered thereby, but the court may order visitation under the
supervision of an employee of a local social services department upon
a finding that such supervised visitation is in the best interest[s]
of the child” (Family Ct Act § 1030 [c]). The determination whether
visitation is appropriate is within the sound discretion of the court,
and its findings should not be disturbed unless they lack a sound and
substantial basis in the record (see Matter of Vasquez v Barfield, 81
AD3d 1398, 1398; Matter of Hobb Y., 56 AD3d 998, 999). Here, the
court’s determination granting the father unsupervised visitation with
Austin lacks a sound and substantial basis in the record. It is not
in Austin’s best interests to have unsupervised visitation with the
father because the record establishes that the father is unable to
care for the child in a safe manner and there exists the threat of
future harm to Austin. In light of our determination that both Austin
and Anna were at imminent risk of harm in the father’s supervision and
care, we conclude that the father should have supervised visitation
with the children.

     We also agree with petitioner that the court erred in failing to
find that it made reasonable efforts to maintain the children in the
father’s care, and in instead finding that reasonable efforts were not
made, but that the lack of such efforts was appropriate under the
circumstances. Family Court Act § 1027 (b) (ii) provides in relevant
part that, “[i]n determining whether removal or continuing the removal
of a child is necessary to avoid imminent risk to the child’s life or
health, the court shall consider and determine in its order . . .
whether reasonable efforts were made . . . to prevent or eliminate the
need for removal of the child from the home . . . .” In addition,
“[i]f the court determines that reasonable efforts to prevent or
eliminate the need for removal of the child from the home were not
made but that the lack of such efforts was appropriate under the
circumstances, the court shall include such a finding” (§ 1027 [b]
[iii]). Here, the court’s determination that the lack of such efforts
was appropriate under the circumstances was based on its conclusion
that, although petitioner had not provided anger management counseling
for the father, petitioner’s lack of reasonable efforts to do so was
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appropriate because anger management services were not identified as
being necessary until just prior to removal of the children. That was
error, inasmuch as the evidence at the hearing established that
petitioner had in fact provided the father with numerous services,
including services that addressed the father’s discipline of the
children. Indeed, the record establishes that, with respect to the
issue of discipline, petitioner provided an intensive family
coordinator who met with the father for seven hours a week and a
preventative caseworker who met with him several times a month.
Petitioner also scheduled a mental health evaluation for the father
and provided him with financial assistance, transportation assistance,
emergency food vouchers, and case work counseling. We therefore
conclude that petitioner made reasonable efforts to prevent or
eliminate the need for removal of the children from the home.

     Finally, we agree with petitioner that the court erred in failing
to issue an order of protection. At an emergency removal hearing,
“the court may, for good cause shown, issue a preliminary order of
protection” (Family Ct Act § 1027 [c]). At the conclusion of the
evidence, petitioner requested an order of protection requiring the
father not to use any corporal punishment, and we agree with
petitioner that there was “good cause” for issuing an order of
protection in this case (id.). We therefore remit the matter to
Family Court for the issuance of such an order.




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
