Opinion
2015-06-04
In re NAQI T., and Another, Children Under the Age of Eighteen Years, etc., Marlena S., Respondent–Appellant, Administration for Children's Services, et al., Petitioners–Respondents, Shaka T., etc., et al., Nonparty Respondents.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for Administration for Children's Services, respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for Administration for Children's Services, respondent.
Larry S. Bachner, Jamaica, for Shaka T., respondent.
Bruce A. Young, New York, for Wadner N., respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
TOM, J.P., SWEENY, MOSKOWITZ, DeGRASSE, RICHTER, JJ.
Orders, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about January 23, 2014, which, upon a fact-finding determination that respondent mother neglected the subject children, granted custody of the children to their respective fathers, unanimously affirmed, without costs.
The finding of neglect is supported by a preponderance of the evidence, which demonstrates that respondent's alcohol abuse impaired the children's physical, mental or emotional condition or placed the children at imminent risk of impairment ( see Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 931 N.Y.S.2d 4 [1st Dept.2011]; Family Court Act §§ 1012[f][i][B]; 1046[b] [i] ). The children wore tattered, dirty clothing and gave off an odor; Naqi's classmates refused to sit near him ( see Matter of China C. [Alexis C.], 116 A.D.3d 953, 954, 985 N.Y.S.2d 104 [2d Dept.2014], lv. dismissed23 N.Y.3d 1047, 992 N.Y.S.2d 782, 16 N.E.3d 1261 [2014]; Matter of David II., 49 A.D.3d 1093, 854 N.Y.S.2d 583 [3rd Dept.2008] ). Naqi, who is autistic and attends a small, specialized class, also missed an excessive number of days of school to his detriment ( see Matter of Jaquan F. [Alexis F.], 120 A.D.3d 1113, 993 N.Y.S.2d 18 [1st Dept.2014] ).
The record establishes that it is in the best interests of the children to be in the custody of their respective fathers ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). While continuing to live with siblings is often in a child's best interest, this is “not an absolute” (id. at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260); both fathers have expressed a willingness to ensure that each sibling enjoys frequent contact with the other ( see Matter of Shayna R., 57 A.D.3d 262, 263, 869 N.Y.S.2d 46 [1st Dept.2008] ).