Opinion
822 CAF 17–00800
06-29-2018
In the MATTER OF RICKY A., Kara A., and Kade G. Wayne County Department of Social Services, Petitioner–Respondent; v. Barry A., Respondent–Appellant, and Suzanne C., Respondent.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT. HEATHER MAURE, LYONS, FOR PETITIONER–RESPONDENT. SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILD. PETER G. CHAMBERS, NEWARK, ATTORNEY FOR THE CHILD.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–APPELLANT.
HEATHER MAURE, LYONS, FOR PETITIONER–RESPONDENT.
SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILD.
PETER G. CHAMBERS, NEWARK, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 10 of the Family Court Act, respondent father appeals from an order determining that he neglected the subject children. Contrary to the father's contention, Family Court's determination is supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; see generally Nicholson v. Scoppetta , 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). "In reviewing a determination of neglect, we must accord great weight and deference to the determination of Family Court, including its drawing of inferences and assessment of credibility, and we should not disturb its determination unless clearly unsupported by the record" ( Matter of Shaylee R. , 13 A.D.3d 1106, 1106, 787 N.Y.S.2d 553 [4th Dept. 2004] ).
Here, the testimony presented at the fact-finding hearing established that the father suffers from untreated posttraumatic stress and substance abuse disorders. On one occasion, the father returned home after drinking liquor and beer and displayed increasingly erratic behavior in the presence of the children. The father engaged in a verbal altercation with respondent mother, which became physical, and he threw his phone into a fire that he had started in the backyard. The father then left the home with the mother, leaving the children alone in the home, and they did not return for more than 24 hours. Having witnessed the domestic violence between respondents, as well as the father's intoxication and erratic behavior, the children became afraid when respondents did not return home or contact them after so many hours had passed. The children had no way to contact respondents, and respondents never checked in on the children or had another adult do so. The children eventually contacted their older sister through Facebook, and then waited two hours for her to travel from Utica to their home in Wayne County. The children's older sibling called 911 and reported respondents as missing persons and the police responded to the residence, where the children had been alone for approximately 20 hours. Meanwhile, respondents drove past the house while police cars were parked outside and chose not to return home for another four hours. We conclude that the children's proximity to the domestic violence between respondents, combined with the father's failure to address his mental health and substance abuse issues and respondents' failure to provide adequate supervision, placed the children in imminent danger of physical, emotional, or mental impairment (see Family Ct. Act § 1012[f][i][B] ; Matter of Trinity E. [Robert E.] , 137 A.D.3d 1590, 1591, 27 N.Y.S.3d 758 [4th Dept. 2016] ; Matter of Raven B. [Melissa K.N.] , 115 A.D.3d 1276, 1278–1279, 983 N.Y.S.2d 155 [4th Dept. 2014] ; see generally Nicholson , 3 N.Y.3d at 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ).
Contrary to the father's further contention, the out-of-court statements of the children were sufficiently corroborated by the father's testimony as well as the testimony of the police officers who responded to the 911 call, and there was sufficient cross-corroboration of each child's statement with the statements of the other children (see Family Ct. Act § 1046[a][vi] ; Matter of Isaiah S. , 63 A.D.3d 948, 949, 880 N.Y.S.2d 528 [4th Dept. 2009] ; Matter of Nicholas L. , 50 A.D.3d 1141, 1142, 857 N.Y.S.2d 629 [4th Dept. 2008] ). We have considered the father's remaining contentions and conclude that they lack merit.