Opinion
537 CAF 16–01195
06-29-2018
In the MATTER OF RAVEN F. Erie County Department of Social Services, Petitioner–Respondent; v. Nicholas F., Respondent–Appellant, and Angela C., Respondent. (Appeal No. 1.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL, Buffalo), ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.
JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL, Buffalo), ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the finding that respondent Nicholas F. neglected the subject child by engaging in a pattern of domestic violence in the child's presence, and as modified the order is affirmed without costs.
Memorandum: These consolidated appeals arise from two related child protective proceedings pursuant to article 10 of the Family Court Act. In appeal No. 1, respondent father appeals from an order of fact-finding determining that he neglected the subject child (see generally § 1112[a] ). In appeal No. 2, the father appeals from an order that granted petitioner's motion for summary judgment on the petition, which alleged that the father derivatively neglected his younger child.
In appeal No. 1, we agree with the father that petitioner failed to establish by a preponderance of the evidence that he neglected the older child on the ground that he engaged in misconduct constituting a pattern of domestic violence when the child was "presumably present" (see Matter of Ilona H. [Elton H.], 93 A.D.3d 1165, 1166–1167, 940 N.Y.S.2d 406 [4th Dept. 2012] ; see generally Family Ct Act § 1046[b][i] ), and we therefore modify the order accordingly. In light of that determination, the father's contentions regarding various evidentiary rulings by Family Court with respect to that ground are academic. We reject, however, the father's further contention that petitioner failed to establish by a preponderance of the evidence that he neglected the older child based on the father's long-standing history of mental illness and erratic and aggressive behavior (see Matter of Mesiah Elijah B. [Taneez B.] , 132 A.D.3d 456, 456, 17 N.Y.S.3d 637 [1st Dept. 2015] ; Matter of Harmony S., 22 A.D.3d 972, 973, 802 N.Y.S.2d 784 [3d Dept. 2005] ; see generally § 1046[b][i] ).
We reject the father's contention in appeal No. 2 that petitioner failed to meet its initial burden of establishing derivative neglect with respect to the younger child (see generally Matter of Xiomara D. [Madelyn D.], 96 A.D.3d 1239, 1240–1241, 947 N.Y.S.2d 203 [3d Dept. 2012] ). We conclude that the court properly determined that petitioner's submissions established an impairment of the father's parental judgment to the point that it created a substantial risk of harm for any child left in the father's care (see Matter of Devre S. [Carlee C.] , 74 A.D.3d 1848, 1849, 902 N.Y.S.2d 739 [4th Dept. 2010] ), and that the neglect determination in appeal No. 1 was sufficiently proximate in time to support a reasonable conclusion that the problematic conditions continued to exist (see Matter of Tradale CC., 52 A.D.3d 900, 901, 859 N.Y.S.2d 288 [3d Dept. 2008] ). The father failed to raise an issue of fact in opposition, and we therefore conclude that the court properly granted the motion (see generally Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182–183, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ). We have reviewed the father's remaining contentions in appeal No. 2 and conclude that none require reversal or modification of the order in that appeal.