Opinion
03-18-2016
In the Matter of TRINITY E. Monroe County Department of Human Services, Petitioner–Respondent; Christie J.C., Respondent, Robert E., Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (William G. Pixley of Counsel), for Respondent–Appellant. Merideth Smith, County Attorney, Rochester (Carol Eisenman of Counsel), for Petitioner–Respondent. Paul B. Watkins, Attorney for the Child, Fairport.
Timothy P. Donaher, Public Defender, Rochester (William G. Pixley of Counsel), for Respondent–Appellant.
Merideth Smith, County Attorney, Rochester (Carol Eisenman of Counsel), for Petitioner–Respondent.
Paul B. Watkins, Attorney for the Child, Fairport.
Opinion
MEMORANDUM:
In this proceeding pursuant to article 10 of the Family Court Act, respondent father appeals from an order finding that he neglected his daughter. We reject the father's contention that Family Court erred in basing its finding of neglect on matters not contained in the petition, i.e., on the subject child's failure to thrive while in the father's care. The record establishes that the court based its finding of neglect on the allegations in the petition, and only noted in a footnote that the child had failed to thrive.
We also reject the father's contention that the court's finding of neglect is not supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ). Pursuant to Family Court Act § 1012(f)(i)(B), “there must be ‘proof of actual (or imminent danger of) physical, emotional or mental impairment to the child’ ... In order for danger to be ‘imminent,’ it must be ‘near or impending, not merely possible’ ... Further, there must be a ‘causal connection between the basis for the neglect petition and the circumstances that allegedly produce the ... imminent danger of impairment’ ” (Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101). Here, the court properly concluded that the subject child was in imminent danger of physical, emotional or mental impairment based on the father's long-standing history of mental illness and his failure to obtain treatment for it (see Matter of Alexis H. [Jennifer T.], 90 A.D.3d 1679, 1680, 936 N.Y.S.2d 823, lv. denied 18 N.Y.3d 810, 2012 WL 1085530; cf. Matter of Lacey–Sophia T.-R. [Ariela (T.)W.], 125 A.D.3d 1442, 1445, 3 N.Y.S.3d 250), and his failure to seek treatment for substance abuse issues (see Matter of Alim Lishen Laquan R., 63 A.D.3d 947, 947–948, 881 N.Y.S.2d 155). The court also found that the father had permitted the child to be cared for by respondent mother, whom the father knew to be an unsuitable caregiver (see Matter of Claudina E.P. [Stephanie M.], 91 A.D.3d 1324, 1324, 937 N.Y.S.2d 655; Matter of Donell S. [Donell S.], 72 A.D.3d 1611, 1612, 900 N.Y.S.2d 217, lv. denied 15 N.Y.3d 705, 2010 WL 3431042). Finally, “[t]he exposure of the child to domestic violence between the parents may form the basis for a finding of neglect” (Matter of Michael G., 300 A.D.2d 1144, 1144, 752 N.Y.S.2d 772), and thus we reject the father's contention that the court erred in relying upon an incident of domestic violence committed by the father as an additional ground for its finding of neglect (see generally Nicholson v. Scoppetta, 3 N.Y.3d 357, 375, 787 N.Y.S.2d 196, 820 N.E.2d 840).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.