Opinion
03-23-2016
In the Matter of ZEYKIS B. (Anonymous). Administration for Children's Services, appellant; Vincent B. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Jamell F. (Anonymous), Jr. Administration for Children's Services, appellant; Vincent B. (Anonymous), respondent. (Proceeding No. 2).
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr and Amanda Sue Nichols of counsel), for appellants. Brian Zimmerman, Brooklyn, N.Y., for respondent. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the children.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr and Amanda Sue Nichols of counsel), for appellants.
Brian Zimmerman, Brooklyn, N.Y., for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the children.
L. PRISCILLA HALL, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE and BETSY BARROS, JJ.
Appeal from an order of the Family Court, Kings County (Alan Beckoff, J.), dated January 14, 2015. The order, after a fact-finding hearing, dismissed the neglect petitions pursuant to Family Court Act § 1051(c).
ORDERED that the order is reversed, on the law, without costs or disbursements, the petitions are reinstated, a finding of neglect of the subject children is made against the respondent, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and dispositions thereafter.
The petitioner commenced these proceedings pursuant to article 10 of the Family Court Act, alleging that the subject children had been neglected by the respondent. After a fact-finding hearing, the Family Court determined that the petitioner had established neglect by a preponderance of the evidence. However, noting the respondent's relocation to Georgia, the court determined that it could not enter a meaningful order of disposition and dismissed the petitions pursuant to Family Court Act § 1051(c). The petitioner appeals.
The Family Court properly determined that a preponderance of the evidence established that the respondent neglected the subject children by engaging in an act of domestic violence against the mother in the children's presence, which created an imminent danger of impairing the children's physical, mental, or emotional condition (see Family Ct. Act §§ 1012[f][i] ; 1046[a][vi], [b][i]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368–369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; Matter of Alexandria S. [Alexander S.], 105 A.D.3d 856, 962 N.Y.S.2d 675 ; Matter of Kiara C. [David C.], 85 A.D.3d 1025, 926 N.Y.S.2d 566 ; Matter of Jordan E., 57 A.D.3d 539, 869 N.Y.S.2d 162 ).
However, the Family Court erred in dismissing the petitions pursuant to Family Court Act § 1051(c). The respondent's relocation to Georgia did not provide a basis for determining that the aid of the court was not required (see Matter of Imena V. [Dia V.], 91 A.D.3d 1067, 937 N.Y.S.2d 387 ). The respondent is the biological father of one of the children and could return to New York at any time. Moreover, the children are still minors, and the finding of neglect could prove significant in any future court proceeding (see id. at 1068, 937 N.Y.S.2d 387 ; Matter of Mary Kate VV., 59 A.D.3d 873, 873 N.Y.S.2d 375 ). The Family Court's determination that it could not enter a meaningful order of disposition under these circumstances was not a valid basis for dismissing the petitions pursuant to Family Court Act § 1051(c) (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 183, 608 N.Y.S.2d 940, 630 N.E.2d 636 ; Matter of Vernice B. [Patton], 129 A.D.3d 714, 10 N.Y.S.3d 323 ), and, in any event, was incorrect as a matter of law (see Family Ct. Act §§ 1052[a] ; 1056[1]; Matter of Sheena D., 8 N.Y.3d 136, 142, 831 N.Y.S.2d 92, 863 N.E.2d 96 ).