Opinion
2020–07144, 2020–07145 Docket Nos. N–1151–18, N–1152–18
10-06-2021
In the MATTER OF MADELEINE B. (Anonymous). Administration for Children's Services, petitioner-respondent; v. Peter B. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Christian B. (Anonymous). Administration for Children's Services, petitioner-respondent; v. Peter B. (Anonymous), appellant, et al., respondent. (Proceeding No. 2)
Spodek Law Group, P.C., New York, N.Y. (Mary Lou Chatterton of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Jeremy W. Shweder and Julia Bedell of counsel; Maegan Gorman on the brief), for petitioner-respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Polixene Petrakopoulos of counsel), attorney for the children.
Spodek Law Group, P.C., New York, N.Y. (Mary Lou Chatterton of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Jeremy W. Shweder and Julia Bedell of counsel; Maegan Gorman on the brief), for petitioner-respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Polixene Petrakopoulos of counsel), attorney for the children.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, LARA J. GENOVESI, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Richmond County (Gregory L. Gliedman, J.), dated July 31, 2019, and (2) an order of disposition of the same court dated August 29, 2019. The order of fact-finding, after a fact-finding hearing, found that the father neglected the child Madeleine B. and derivatively neglected the child Christian B. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, released the children to the custody of the mother with supervision by the petitioner for a period of 12 months and directed the father to cooperate with the petitioner's supervision during that period. ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the appeal from so much of the order of disposition as released the children to the custody of the mother with supervision by the petitioner for a period of 12 months and directed the father to cooperate with the petitioner's supervision during that period is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of disposition as released the subject children to the custody of the mother with supervision by the petitioner for a period of 12 months and directed the father to cooperate with the petitioner's supervision during that period must be dismissed as academic, as the period of supervision has expired (see Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1013, 953 N.Y.S.2d 121 ). The findings of neglect and derivative neglect, however, constitute a permanent and significant stigma which might indirectly affect the father's status in future proceedings. Therefore, the appeal from the portion of the order of disposition that brings up for review the findings of neglect and derivative neglect is not academic (see id. at 1013, 953 N.Y.S.2d 121 ).
The petitioner commenced these related proceedings pursuant to Family Court Act article 10, alleging that the mother and the father neglected the subject children, Madeleine B. and Christian B. At the fact-finding hearing, evidence was adduced demonstrating that on January 21, 2018, the father, while in an intoxicated state, perpetrated acts of domestic violence against the mother while the children were present in the home and Madeleine witnessed the father choking the mother. Madeleine was crying and urinated on herself. Evidence was also adduced at the hearing that the father was intoxicated during an earlier incident of domestic violence involving the mother. After the hearing, the Family Court found that the father neglected Madeleine and derivatively neglected Christian.
"At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected" ( Matter of Kenya R. [Edmindo R.], 129 A.D.3d 978, 979, 11 N.Y.S.3d 663 [internal quotation marks omitted]; see Family Ct Act § 1046[b][i] ). In making a finding of neglect, "[t]he Family Court's assessment of the credibility of witnesses is entitled to considerable deference" ( Matter of Laila S.W. [Loren S.], 144 A.D.3d 694, 695, 40 N.Y.S.3d 187 [internal quotation marks omitted]). There is no basis in the record here to disturb the Family Court's determination of the factual issues.
Family Court Act § 1046(a)(iii) provides that an agency establishes a prima facie case of neglect where it presents "proof that a person repeatedly misuses ... alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of ... intoxication." In cases where this presumption is triggered, the agency is not required to establish that the child suffered actual harm or was at imminent risk of harm (see Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 ;
Matter of Arthur S. [Rose S.], 68 A.D.3d 1123, 1124, 891 N.Y.S.2d 457 ). Further, "[e]ven a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding" ( Matter of Jermaine T. [Jairam T.], 193 A.D.3d 943, 945, 146 N.Y.S.3d 662 ). Accordingly, the father's neglect of Madeleine was established.
To determine whether derivative neglect is present, the evidence of abuse or neglect of one child must indicate a fundamental defect in the parent's understanding of the duties of parenthood (see Matter of Jelani B., 54 A.D.3d 1032, 1033, 865 N.Y.S.2d 114 ). Here, a derivative finding of neglect as to Christian was warranted since the father committed acts of domestic violence while Christian was in the home (see Matter of Monica C.M. [Arnold A.], 107 A.D.3d 996, 997, 968 N.Y.S.2d 143 ), thereby evincing a flawed understanding of his duties as a parent (see Matter of Harmonee B. [Roy B.], 161 A.D.3d 852, 73 N.Y.S.3d 455 ).
The father's remaining contentions are without merit.
AUSTIN, J.P., HINDS–RADIX, BARROS and GENOVESI, JJ., concur.