         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1594
CAF 09-02209
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF SHANIA S.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;                           MEMORANDUM AND ORDER

CHANEESE T., RESPONDENT,
AND LARRY R.S., JR., RESPONDENT-APPELLANT.


WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT.

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

EUGENE P. ADAMS, ATTORNEY FOR THE CHILD, BUFFALO, FOR SHANIA S.


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered October 19, 2009 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, placed
the subject child in the custody of petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding pursuant to
Family Court Act article 10 against respondent mother and respondent
“putative” father (father), and the father now appeals from an order
adjudicating the newborn child at issue in this appeal to be a
neglected child. Contrary to the father’s contention, the finding of
neglect is supported by a preponderance of the evidence (see § 1046
[b] [i]). The evidence presented at the fact-finding hearing
demonstrated that the father was virtually homeless and that, at the
time of the hearing on the petition, he had neither the resources nor
the ability to care for the child. A neglected child includes one
“whose physical, mental or emotional condition . . . is in imminent
danger of becoming impaired as a result of the failure of [her] parent
or other person legally responsible for [her] care to exercise a
minimum degree of care” in, inter alia, providing adequate food,
clothing and shelter (§ 1012 [f] [i]). “ ‘Actual injury or impairment
need not be found, as long as a preponderance of the evidence
establishes that the child is in imminent danger of either injury or
impairment’ ” (Matter of Elijah NN., 66 AD3d 1157, 1159, lv denied 13
NY3d 715). The father contends for the first time on appeal that the
petition must be dismissed against him because he is not a “parent or
other person legally responsible for [the] child’s care” (§ 1012 [a];
see § 1012 [g]), and that contention therefore is not properly before
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                                                        CAF 09-02209

us. We note in any event that the contention of the father is wholly
inconsistent with his testimony at the hearing on the petition that
the child is in fact his daughter.




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
