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

1203
CAF 11-02392
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF LEBRAUN H.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
                                                    MEMORANDUM AND ORDER
BRENDA H., RESPONDENT-APPELLANT.
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IN THE MATTER OF LINDA C.,
PETITIONER-RESPONDENT,

                    V

BRENDA H., RESPONDENT-APPELLANT.
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IN THE MATTER OF BRENDA H.,
PETITIONER-APPELLANT,

                    V

LINDA C., RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT AND PETITIONER-
APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

TIMOTHY J. HENNESSY, WILLIAMSVILLE, FOR PETITIONER-RESPONDENT AND
RESPONDENT-RESPONDENT.

AYOKA A. TUCKER, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered October 21, 2011. The order, among other
things, determined that the subject child had been neglected by
respondent-petitioner Brenda H. and granted the petition of
petitioner-respondent Linda C.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by dismissing the petition of Erie
County Department of Social Services and vacating the supervised
visitation provision, and as modified the order is affirmed without
costs and the matter is remitted to Family Court, Erie County, to
fashion an appropriate schedule of unsupervised visitation for
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respondent-petitioner Brenda H.

     Memorandum: Petitioner Erie County Department of Social Services
(DSS) commenced a proceeding pursuant to Family Court Act article 10
alleging that the subject child had been neglected by respondent-
petitioner Brenda H., her paternal grandmother (respondent). At or
about the same time, petitioner-respondent Linda C., the maternal
grandmother (petitioner), commenced a proceeding pursuant to Family
Court Act article 6 seeking modification of a prior order granting
joint custody of the child to her and respondent. The parties and
Family Court agreed to consolidate the proceedings, inasmuch as they
anticipated that the evidence at a hearing would overlap to some
extent. In appeal No. 1, respondent appeals from an order
determining, following a fact-finding hearing, that she neglected the
child. The order also granted the petition of petitioner by
terminating joint custody and placing the child in the sole custody of
petitioner with supervised visitation to respondent. In appeal No. 2,
respondent appeals from an order, entered following a dispositional
hearing, directing that respondent complete sex offender and parenting
treatment programs, and continuing respondent’s supervised visitation
with the child.

     We agree with respondent in appeal No. 1 that DSS failed to meet
its burden of establishing by a preponderance of the evidence that the
“child’s physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired” as a consequence of
respondent’s failure to exercise a minimum degree of care (Nicholson v
Scoppetta, 3 NY3d 357, 368). The court’s finding of neglect hinges on
the testimony of DSS’s expert psychologist that respondent’s
dismissive response to the child’s allegations that she had been
sexually abused by her eight-year-old cousin put the child at risk of
harm because such response would cause the child to be reluctant to
report future allegations of abusive contact. The evidence did not
establish that the child was in fact sexually abused, and we therefore
conclude that the court erred in finding that respondent is chargeable
with neglect for failing to protect the child from actual harm (see
Matter of Robert D., 18 AD3d 871, 871-872). Moreover, the finding of
neglect cannot be based upon the child’s possible reaction to future
harm. “[A] finding of neglect will not be based on a failure to
prevent theoretical future harm which never occurred” (Matter of P.
Children, 272 AD2d 211, 212, lv denied 95 NY2d 770). We therefore
modify the order in appeal No. 1 by dismissing the neglect petition.
As a consequence of the dismissal of that petition, there is no
jurisdictional basis for the directives in the dispositional order in
appeal No. 2, and we therefore vacate that order (see Matter of
Brandon C., 237 AD2d 821, 822; Matter of Rasha B., 139 AD2d 962, 963).

     With respect to the court’s directives concerning custody and
visitation in the order in appeal No. 1, petitioner and respondent
agree that modification of the existing custody arrangement was
warranted inasmuch as their acrimonious relationship has rendered
joint custody unworkable and not in the child’s best interests (see
Matter of Rhubart v Rhubart, 15 AD3d 936, 936). Upon our review of
the evidence in light of the relevant factors (see generally
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                                                        CAF 11-02392

Friederwitzer v Friederwitzer, 55 NY2d 89, 94), we conclude that the
award of sole custody to petitioner has a sound and substantial basis
in the record (see Matter of Chilbert v Soler, 77 AD3d 1405, 1406, lv
denied 16 NY3d 701). We note that the child has never lived primarily
with respondent, and that respondent acknowledges that her
relationship with the child is strained. We reach a contrary
conclusion, however, with respect to the court’s determination that
respondent’s visitation with the child should be supervised (see
Matter of Ross v Ross, 86 AD3d 615, 617; Matter of Oliver v Oliver,
284 AD2d 934, 935). We therefore further modify the order in appeal
No. 1 accordingly, and we remit the matter to Family Court to fashion
an appropriate schedule of unsupervised visitation for respondent.




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
