                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     519003
________________________________

In the Matter of N. KK.,
   Alleged to be a Neglected
   Child.

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

CARLA KK.,
                    Appellant.
________________________________


Calendar Date:   April 24, 2015

Before:   Peters, P.J., Garry, Egan Jr. and Lynch, JJ.

                             __________


     Victor B. Carrascoso, Cooperstown, for appellant.

      Sarah Fitzpatrick, Chenango County Department of Social
Services, Norwich, for respondent.

     Steven G. Natoli, Norwich, attorney for the child.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Dowd, J.),
entered December 12, 2013 in Chenango County, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 10, to adjudicate respondent's
child to be neglected.


      Respondent is the mother of a child (born in 1997) who was
removed from her custody and placed in petitioner's care after an
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altercation in December 2011. Petitioner then commenced this
proceeding seeking a determination that respondent had neglected
the child. Following fact-finding and dispositional hearings,
Supreme Court adjudicated the child to be neglected and continued
her placement in petitioner's custody. Respondent appeals.

      A child is deemed to be neglected if his or her "physical,
mental or emotional condition has been impaired or is in imminent
danger of becoming impaired as a result of the failure of his [or
her] parent or other person legally responsible for [the child's]
care to exercise a minimum degree of care" (Family Ct Act § 1012
[f] [i]). Whether a parent has exercised the requisite degree of
care depends on whether he or she "acted as a reasonably prudent
parent would have acted under the circumstances," an objective
standard that is applied without regard to lifestyle choices or
economic or social status (Matter of Christian Q., 32 AD3d 669,
670 [2006]; see Matter of Antonio NN., 28 AD3d 826, 826-827
[2006]). Here, respondent contends that petitioner did not
establish that the child was impaired or in imminent danger of
impairment and, further, that the neglect adjudication infringed
upon respondent's right to raise the child in the lifestyle and
values of her choice.

      As respondent contends, it is well established that the
liberty interest of parents in raising and rearing their children
is constitutionally protected (see Troxel v Granville, 530 US 57,
65 [2000]; Matter of Bentley XX. [Eric XX.], 121 AD3d 209, 213
[2014]). It is, however, equally well established that this
protection is not absolute, that the parent's rights must be
balanced against the best interests of the child, and that the
child's welfare is paramount (see Lehr v Robertson, 463 US 248,
257-258 [1983]; Alex LL. v Department of Social Servs. of Albany
County, 60 AD3d 199, 210 [2009], lv denied 12 NY3d 710 [2009]).
Here, the child testified that the altercation that led to her
removal began when respondent became angry about the way the
child had performed a chore. An argument escalated to respondent
threatening the child with a machete. The child picked up a
knife to defend herself, but both parties then put down the
weapons, and the child left the residence. While the child was
outdoors, respondent locked the residence and left in her vehicle
with the keys. The child was locked outside for about 45 minutes
                              -3-                519003

before respondent returned with police officers. Respondent
offered a different account of these events, but Supreme Court
credited the child's testimony, and this Court defers to such
assessments (see Matter of Josephine BB. [Rosetta BB.], 114 AD3d
1096, 1100 [2014]).

      Elizabeth Wonka, a sergeant with the State Police,
testified that respondent was angry and aggressive upon her
arrival at the station following this altercation, claiming that
the child had threatened her with a machete. Wonka accompanied
respondent back to the residence and interviewed both parties.
According to Wonka, the child was calm and stated that respondent
had initiated the altercation and had threatened her with the
machete. Wonka stated that respondent remained angry and
verbally abusive; respondent blamed the child for the altercation
and stated in the child's presence that she wanted her removed
from the home and would sign away her parental rights. At the
time of this occurrence, Wonka was familiar with respondent, as
she had complained to police about the child on other occasions
and had previously asked them to remove the child from the home.
On one occasion, respondent had asked police to remove the child
because she would not stop reading a book. Respondent had also
made numerous claims that people in the community had harassed
her or damaged her property. According to Wonka, police had
investigated each complaint – at least 20 – but had never found
any evidence that harassment or damage had occurred. Wonka
stated that respondent was sometimes calm in her interactions
with police, but at other times was "loud, angry, abusive [and]
irrational," and that her agitation had escalated during the
weeks just before the December 2011 incident. On one occasion,
respondent had told police that if they did not stop the alleged
harassment, respondent would "slash somebody and [police would]
have to find body parts." Based upon this history and her
observations of respondent's demeanor on the evening of the
altercation, Wonka grew concerned that respondent was a danger to
the child or to herself, and made an arrest pursuant to the
Mental Hygiene Law. Respondent was transported to a psychiatric
hospital for an evaluation and released later that night. The
child was placed in foster care, where she has remained.
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      Petitioner's neglect allegations are premised upon this
incident, and upon respondent's mental health issues and living
situation. A psychiatrist testified that he conducted a court-
ordered evaluation and diagnosed respondent with a delusional
disorder of a persecutory type. According to the psychiatrist,
although respondent is functional in other areas, the disorder
causes her to believe that she is constantly being harassed by
others and to perceive ordinary events – such as the failure of
her car to start – as incidents of intentional sabotage or
persecution. As an example, he testified that when respondent
visited his office for the evaluation, she was reluctant to park
her car where she could not see it because she believed that
unnamed persons would vandalize it. In most cases, according to
the psychiatrist, this condition is not responsive to treatment
because, unless a sufferer recognizes the disorder and wants to
be helped, efforts to provide therapy or other assistance are
often treated as persecution and rejected. The psychiatrist did
not evaluate respondent's parenting capacities and did not
interview the child, but testified that, in general, this mental
condition in a parent would have a profound negative effect on a
child's mental and emotional condition. Other witnesses, such as
Wonka and petitioner's caseworkers, confirmed that respondent
frequently claimed that she was being harassed or persecuted.
Respondent's testimony included multiple statements that
petitioner and others were harassing her and that negative events
in her life – such as the child's removal – were examples of
persecution.

      As for the living conditions, at the time of the child's
removal, respondent and the child were living in a small,
unfinished one-room structure that the two of them had
constructed. Respondent testified that the structure had
electricity supplied by solar panels and was heated with a
propane heater, and that meals were cooked on a propane camp
stove. There was no plumbing or running water; respondent stated
that she refused to use the well on the property because she
believed that her neighbors had intentionally contaminated it,
and instead purchased water in plastic containers for cooking and
washing. As for sanitation, the child testified that a bucket
kept in the structure's single room served as a toilet.
Respondent testified that waste was anaerobically processed in
                              -5-                519003

outdoor containers, but the child stated that she and respondent
buried it in holes dug outside.

      Respondent refused to permit petitioner to inspect this
structure for more than a year after the child's removal, despite
court orders directing her to do so. A caseworker who eventually
inspected the structure testified that it was covered with tarps
that had to be lifted out of the way to open the structure's only
door and that blocked the windows, except for one or two small
openings for ventilation. The interior was dark, smelled of
urine and feces, and was cluttered with, among other things, live
chickens in plastic containers. The caseworker saw no water,
toileting or washing facilities or stove; when asked about these
items, respondent stated that she did not have to answer such
questions. The caseworker noted several safety concerns,
including difficulty in exiting the structure in an emergency
because of the covered door and windows and the cluttered
conditions. Respondent stated that conditions in the structure
had changed since the child's removal, and that she no longer
resided there and visited only to care for her animals. However,
the caseworker described observing cooking supplies and personal
items present at the site, undermining this testimony with the
suggestion that respondent might still have been residing there.
Respondent offered clearly conflicting testimony in the record
regarding the residence, testifying on several occasions prior to
the inspection that she and the child had lived in the structure
for about a year, but after the inspection that they had never
resided there.

      The child testified that she believed that respondent was
doing everything she could and was trying to improve their home,
but also testified that she never brought friends to the
residence because she was ashamed of it, and that – although the
child was a highly successful student who planned to attend
college – respondent did not support her attendance at school and
had tried to prevent her from attending in the past. She further
stated that there had been other altercations with respondent,
before the December 2011 incident, in which she had feared that
she would be injured. The child did not want to return to
respondent's care because she was afraid that they would fight
again, and that someone might be injured or arrested.
                              -6-                519003

Considering this testimony and the record as a whole, we find
ample support for Supreme Court's neglect determination. The
incident in which respondent threatened the child with a machete
and locked her outdoors for an extended period on a winter
evening, combined with respondent's prior altercations with the
child and requests to police to have her removed from the home,
ongoing mental health issues and unsubstantiated complaints of
harassment and persecution supported the court's finding that
respondent created an imminent threat to the child's physical,
mental and emotional well-being (see Matter of Daniel X. [Monica
X.], 114 AD3d 1059, 1060-1061 [2014]; Matter of Catherine K., 224
AD2d 880, 881 [1996]; compare Matter of Anthony TT. [Philip TT.],
80 AD3d 901, 902-903 [2011], lv denied 17 NY3d 704 [2011]). As
for the residence, even assuming, as respondent contends, that
the conditions revealed by the inspection had deteriorated
following the child's removal, the primitive living conditions
described by the child in her credible testimony provide further
support for the finding of neglect (see Matter of Baby Girl E.,
306 AD2d 343, 343-344 [2003]; Matter of A. Children, 189 AD2d
872, 872 [1993]; Matter of Tammie Z., 105 AD2d 463, 464 [1984],
affd 66 NY2d 1 [1985]; Matter of Terry S., 55 AD2d 689, 690
[1976]).

      Following dispositional and permanency hearings, Supreme
Court continued the child's placement in petitioner's custody and
– based in part upon the request of the child, who was then 16
years old – approved a change in her permanency goal from
reunification with respondent to "another planned permanent
living arrangement" (Family Ct Act § 1089 [c] [1] [v]), by which
the child will remain in petitioner's custody and continue to
reside with her foster family while completing high school and
preparing for college.1 The record evidence of respondent's


    1
        Petitioner and the attorney for the child contend that
respondent consented to the continued foster family placement,
and thus cannot challenge it (see e.g. Matter of Connor S.
[Joseph S.], 122 AD3d 1096, 1097 [2014]). However, this is not
evident from the terms of the order itself, nor from review of
the transcript of the dispositional hearing, which is incomplete;
the transcript of the permanency hearing reveals that respondent
                              -7-                  519003

ongoing mental health issues and failure to cooperate with
petitioner or progress toward reunification, the child's stated
preference to remain with the foster family, and the willingness
of the foster family to serve as a resource for her provide a
sound and substantial basis for the court's determination that
this disposition was in the child's best interests (see Matter of
Alexis AA. [John AA.], 97 AD3d 927, 930 [2012]; compare Matter of
Jose T. [Halvorsen], 87 AD3d 1335, 1336-1337 [2011]).

     Peters, P.J., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




objected to the change in the permanency goal.
