Opinion
16566 16565
01-07-2016
In re CORINE G., A Child Under Eighteen Years of Age, etc., William G., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Neal D. Futerfas, White Plains, for appellant. Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent. Seymour W. James, Jr., The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the child.
Neal D. Futerfas, White Plains, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the child.
Opinion
Decision and Order, Family Court, Bronx County (Sarah P. Cooper, J.), entered on or about June 9, 2014, which found that respondent father neglected the subject child and denied his Family Court Act § 1028 request to have the child released to him, unanimously affirmed, without costs, as to the finding of neglect, and the appeal otherwise dismissed as academic.
The finding of neglect is supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i]; see also Matter of Syed I., 61 A.D.3d 580, 580, 877 N.Y.S.2d 318 1st Dept.2009 ). The record shows that the child was subject to actual or imminent danger of injury or impairment of her emotional and mental condition from exposure to repeated incidents of domestic violence committed by respondent against the child's mother, occurring in respondent's home, in close proximity to the child, and which was exacerbated by his excessive alcohol use (see FCA § 1012[f][i][B]; Matter of Enrique V. [Jose U.V.], 68 A.D.3d 427, 888 N.Y.S.2d 747 1st Dept.2009; Matter of Daphne G., 308 A.D.2d 132, 135, 763 N.Y.S.2d 583 1st Dept.2003; Matter of Honesti H. [Ted H.], 126 A.D.3d 972, 973, 6 N.Y.S.3d 141 2d Dept.2015; Matter of Francis S., 296 A.D.2d 507, 508, 745 N.Y.S.2d 486 2d Dept.2002; see also e.g. Matter of Madison M. [Nathan M.], 123 A.D.3d 616, 616–617, 999 N.Y.S.2d 70 1st Dept.2014; Matter of Carmine G. [Franklin G.], 115 A.D.3d 594, 594, 982 N.Y.S.2d 318 1st Dept.2014 ).
The record also shows imminent danger to the child's care and well-being was attributable to respondent's inability to exercise a minimum degree of care in that the child appeared unkempt, smelled and had not been bathed, for a period, in early January 2012, when the mother had been forced from the apartment in order to seek help from the father's abusive and violent behavior, and the home appeared to be in disarray when left in the father's hands (see Matter of Joele Z.F. [Jacqueline M–F.], 127 A.D.3d 641, 641, 8 N.Y.S.3d 169 1st Dept.2015, lv. denied 25 N.Y.3d 914, 2015 WL 5037233 2015 ).
Contrary to respondent's contention, there exists no basis to disturb the court's credibility determinations, which were amply supported by the record (see e.g. Omarion T. [Isha M.], 128 A.D.3d 583, 583–584, 8 N.Y.S.3d 569 1st Dept.2015 ).
Finally, it is settled that an appeal from a denial of an application for return of a child removed as a result of the initiation of a proceeding pursuant to Family Ct. Act article 10 becomes moot at the point a decision is made on the charges of neglect or abuse (see e.g. Matter of Jabez F. [Martha L.-Bernard F.], 92 A.D.3d 448, 448, 938 N.Y.S.2d 518 1st Dept.2012 ). Moreover, respondent's argument to the extent that there is persisting stigma arising from a denial of a parent's FCA § 1028 motion is misplaced (cf. Matter of C. Children, 249 A.D.2d 540, 540, 672 N.Y.S.2d 134 2d Dept.1998 ).
In any event, even assuming the issue is not academic, the evidence overwhelmingly demonstrates that the denial of respondent's request to parole the child was warranted under the circumstances.