                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     518006
________________________________

In the Matter of HAILEY XX.
   and Others, Alleged to be
   Neglected Children.

CORTLAND COUNTY DEPARTMENT OF
   SOCIAL SERVICES,                         MEMORANDUM AND ORDER
                    Respondent;

ANGEL XX.,
                    Appellant.
________________________________


Calendar Date:   February 20, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


     Lisa K. Miller, McGraw, for appellant.

      Kathleen A. Sullivan, Cortland County Department of Social
Services, Cortland, for respondent.

     Natalie B. Miner, Homer, attorney for the children.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Family Court of Cortland County
(Ames, J.), entered October 18, 2013, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article
10, to adjudicate respondent's children to be neglected.


      Respondent and her husband (hereinafter the father) are the
parents of three children, born in 2008, 2010 and 2011. The
oldest child had previously been temporarily removed from the
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parents' care in 2009 for neglect after the father broke the
child's arm and neither parent sought medical care for the child.
That incident resulted in the father being convicted of assault
and, when he violated probation by perpetrating domestic violence
upon respondent, he was incarcerated. While the father was
incarcerated, respondent and her three children began living with
respondent's new boyfriend. Respondent and her paramour were
involved in repeated incidents of domestic violence – resulting
in both being arrested in December 2012 – and petitioner then
commenced the instant neglect proceeding. Following a hearing,
Family Court rendered a detailed written decision granting the
petition finding, among other things, that respondent engaged in
domestic violence with her paramour in the presence of the
children, the home was filthy and the children were not provided
basic hygiene, and respondent failed to keep the children in
necessary early intervention services. Respondent appeals.

      Prefatorily, we are unpersuaded by respondent's contention
that Family Court erred in allowing petitioner to amend its
petition to conform to the proof by adding allegations of poor
hygiene and uncleanliness. "Family Court is vested with broad
discretion, pursuant to Family Ct Act § 1051 (b), to allow an
amendment of the pleadings 'so long as a reasonable time to
prepare and answer is given'" (Matter of Thomas JJ., 14 AD3d 953,
954 [2005], quoting Matter of Nikole B., 263 AD2d 622, 623
[1999]). There was evidence of the prevailing unsanitary
conditions, Family Court granted the motion to amend in June
2013, and the court reopened the proof and allowed respondent to
present proof regarding such issue at a hearing in September
2013. Family Court did not abuse its discretion in permitting
the amendment under these circumstances (see Matter of Thomas
JJ., 14 AD3d at 954; see also Matter of Ariel C.W.-H. [Christine
W.], 89 AD3d 1438, 1439 [2011]; Matter of Kila DD., 28 AD3d 805,
806 [2006]).

      Respondent's primary argument is that petitioner failed to
prove that she neglected her children. To establish neglect,
petitioner must "demonstrate[], by a preponderance of evidence,
that the child[ren]'s physical, mental or emotional condition was
harmed or is in imminent danger of such harm as a result of the
parent's failure to exercise a minimum degree of care" (Matter of
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Xavier II., 58 AD3d 898, 899 [2009]). "[I]mminent danger of harm
must be near or impending . . . [and] there must be a link or
causal connection between the basis for the neglect petition and
the circumstances that allegedly produce the child[ren]'s
impairment or imminent danger of impairment" (Matter of Lillian
SS. [Brian SS.], 118 AD3d 1079, 1080 [2014], lv dismissed 24 NY3d
936 [2014] [internal quotation marks and citations omitted]).
"In determining whether a parent is exercising a minimum degree
of care, the parent's behavior must be evaluated objectively, in
light of whether a reasonable and prudent parent would have so
acted, or failed to act, under the circumstances" (Matter of
Samuel DD. [Margaret DD.], 81 AD3d 1120, 1122 [2011] [internal
quotation marks, brackets and citations omitted]). "We accord
deference to Family Court's credibility determinations and will
not disturb its findings if they are supported by a sound and
substantial basis in the record" (Matter of Thomas M. [Susan M.],
81 AD3d 1108, 1109 [2011] [citations omitted]; see Matter of
Diane C. v Richard B., 119 AD3d 1091, 1093 [2014]).

      Respondent repeatedly became involved in and remained in
abusive situations, and she failed to take steps to protect the
children from witnessing the resulting domestic violence.
Respondent and her paramour had several incidents of domestic
violence that resulted in police being summoned, and then
respondent would not cooperate in limiting the paramour's access
to the children via a protective order or pressing charges.
Although the paramour was the initial aggressor in most
incidents, Family Court also credited the proof that respondent
pursued and perpetrated violent acts on the paramour in the
presence of the children. In addition, witnesses who went to the
apartment where respondent resided recalled seeing the children
and the residence in a very unclean condition including, among
other things, food and dirt on the floor, cigarette butts and
ashtrays on the floor, clothes thrown throughout the apartment,
the youngest child in a sleeper encrusted with food, bottles with
curdled milk, diapers on all the children that needed to be
changed and that smelled so strongly that they were characterized
as "atrocious," and children not appropriately dressed and so
dirty that caseworkers took turns trying to clean them. There
was also proof that the children needed – and arrangements had
been made for – early intervention services, but respondent
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failed to take reasonable steps to keep the children in the
necessary early intervention services for a period of six months
during 2012. Accepting Family Court's credibility determinations
and viewing the evidence cumulatively, there was sufficient proof
to support the neglect determination (see e.g. Matter of Heyden
Y. [Miranda W.], 119 AD3d 1012, 1014 [2014]).

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
