Opinion
1108 CAF 18–01505
11-15-2019
In the MATTER OF NEVAEH L., Nickolas B., and Zackery C. Niagara County Department of Social Services, Petitioner–Respondent; v. Katherine L., Respondent–Appellant. (Appeal No. 4.)
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (CONNIE LOZINSKY OF COUNSEL), FOR RESPONDENT–APPELLANT. MATTHEW E. BROOKS, LOCKPORT, FOR PETITIONER–RESPONDENT. LAURA A. MISKELL, LOCKPORT, ATTORNEY FOR THE CHILDREN.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (CONNIE LOZINSKY OF COUNSEL), FOR RESPONDENT–APPELLANT.
MATTHEW E. BROOKS, LOCKPORT, FOR PETITIONER–RESPONDENT.
LAURA A. MISKELL, LOCKPORT, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER Appeal from an order of the Family Court, Niagara County (Erin P. DeLabio, J.), entered August 14, 2018 in a proceeding pursuant to Family Court Act article 10. The order, among other things, placed the subject children in the custody of petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this neglect proceeding pursuant to Family Court Act article 10 alleging, inter alia, that respondent mother neglected her three children on two occasions after she consumed alcohol to the point that she was unable to care for them. During the first incident, the mother consumed alcohol during the middle of the day and, after seeing her oldest child pour out the remaining alcohol, she locked him out of the house before falling into a sleep from which she could not be awakened. The mother's younger two children, both under the age of 10 at the time, were thus left in the house without any supervision. On the second occasion, the mother again consumed alcohol and, ultimately, the oldest child observed her "passed out" on the couch with empty beer cans next to her.
In appeal No. 1, the mother appeals from a fact-finding order determining that she neglected the subject children. In appeal Nos. 2 and 3, the mother appeals from permanency orders that changed the permanency goals with respect to the children from reunification to adoption. In appeal No. 4, the mother appeals from a final order of disposition that, inter alia, directed that the mother remain under petitioner's supervision and placed the children in petitioner's custody, to reside in foster care with their maternal grandmother and step-grandfather.
As a preliminary matter, appeal No. 1 must be dismissed inasmuch as the appeal from the dispositional order in appeal No. 4 "brings up for review the propriety of a fact-finding order" ( Matter of Lisa E. [Appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994] ; see Matter of Jaime D. [James N.] [Appeal No. 2], 170 A.D.3d 1524, 1525, 94 N.Y.S.3d 535 [4th Dept. 2019] ). We also note that, although subsequent permanency orders have been entered, appeal Nos. 2 and 3 are not moot inasmuch as the orders in those appeals changed the permanency goals for the children so as to "alter[ ] petitioner's obligations in future permanency hearings from working toward reunification to working toward permanent placement and termination of parental rights" ( Matter of Jacelyn TT. [Tonia TT.—Carlton TT.], 80 A.D.3d 1119, 1120, 915 N.Y.S.2d 732 [3d Dept. 2011] ; see Matter of Victoria B. [Jonathan M.], 164 A.D.3d 578, 580, 82 N.Y.S.3d 504 [2d Dept. 2018] ; Matter of Alexander L. [Andrea L.], 109 A.D.3d 767, 767, 972 N.Y.S.2d 229 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1056, 981 N.Y.S.2d 362, 4 N.E.3d 374 [2014] ).
Contrary to the mother's contention in appeal Nos. 2, 3 and 4, we conclude that Family Court properly determined that the children were neglected, i.e., that their physical, mental or emotional condition was "in imminent danger of becoming impaired as a result of" the mother's failure to exercise a minimum degree of care "in providing the child[ren] with proper supervision or guardianship" ( Family Ct. Act § 1012[f][i][B] ; see generally Nicholson v. Scoppetta, 3 N.Y.3d 357, 369–370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). The children had been removed from the mother's custody in 2013 and placed with her mother and stepfather due to her substance abuse issues, and the mother had relapsed twice before. The children had only recently been returned to the mother's custody when the first of the two incidents occurred. The oldest child, who was 14 years old at the time of the respective incidents, testified at the fact-finding hearing that he and his siblings were afraid of the mother when she consumed alcohol, and his testimony was corroborated by the testimony of the caseworker who interviewed the younger siblings.
Although no actual physical harm befell the children, petitioner established by a preponderance of the evidence (see Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] ) that the mother's " ‘pattern’ " of relapsing and her behavior while under the influence of alcohol created an imminent danger of emotional or mental impairment to the children ( Matter of Amodea D. [Jason D.], 112 A.D.3d 1367, 1368, 978 N.Y.S.2d 513 [4th Dept. 2013] ; see generally Nicholson, 3 N.Y.3d at 369–370, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). This is not a situation where the mother used alcohol or other substances after the children were asleep and thus ignorant of any such use (cf. Matter of Anna F., 56 A.D.3d 1197, 1198, 868 N.Y.S.2d 442 [4th Dept. 2008] ). The mother, who had a long history of problems with alcohol, was drinking and "pass[ing] out" when her children were awake and in need of her care (see Matter of Hailey W., 42 A.D.3d 943, 944, 839 N.Y.S.2d 644 [4th Dept. 2007], lv denied 9 N.Y.3d 812, 846 N.Y.S.2d 602, 877 N.E.2d 652 [2007] ). We thus conclude that there is a sound and substantial basis to support the court's determination that the mother neglected the children and that they should remain in petitioner's custody (see generally Matter of Sean P. [Brandy P.], 156 A.D.3d 1339, 1339–1340, 65 N.Y.S.3d 902 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1528127 [2018] ).
We reject the mother's further contention in appeal Nos. 2 and 3 that the court erred in changing the permanency goals for the children to placement for adoption. Petitioner established, by a preponderance of the evidence, that the children would be at risk of neglect if returned to the mother (see generally Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 283, 67 N.Y.S.3d 78, 89 N.E.3d 468 [2017] ), and the court's determination that it was in their best interests "to change the permanency goal[s] to placement for adoption was supported by a sound and substantial basis in the record" (Matter of Angela N.L. [Ying L.], 153 A.D.3d 1408, 1411–1412, 62 N.Y.S.3d 421 [2d Dept. 2017] ; see Matter of Diceir D.R.R. [Takeyia J.], 114 A.D.3d 948, 948, 980 N.Y.S.2d 922 [2d Dept. 2014], lv denied 23 N.Y.3d 901, 987 N.Y.S.2d 1, 10 N.E.3d 189 [2014] ).
To the extent the mother contends in these appeals that the court erred in denying her Family Court Act § 1028 application for the return of her children and asks this Court to return them to her, we note that the appeal from the order denying that application was dismissed ( Matter of Nickolas B. [Katherine F.L.], 167 A.D.3d 1538, 1539, 90 N.Y.S.3d 780 [4th Dept. 2018] ), and thus we do not address that contention.