| Matter of Imena V. (Dia V.) |
| 2012 NY Slip Op 00152 [91 AD3d 1067] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Imena V. and Others, Children Alleged to beNeglected. Chemung County Department of Social Services, Respondent; Dia V., Appellant, etal., Respondent. |
—[*1] David Kagle, Chemung County Department of Social Services, Elmira, for respondent. Paul Sartori, Elmira, attorney for the children.
Peters, J.P. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered February 15, 2011, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate the subject children to be neglected.
Respondent Chicree RR. (hereinafter the mother) is the mother of the five children who arethe subject of this proceeding (born in 2002, 2003, 2007, 2008 and 2009). Dia V. (hereinafter thefather) is the biological father of the three youngest children and the stepfather of the two oldestchildren. In March 2010, petitioner commenced this proceeding against respondents [*2]seeking an order adjudicating all five children to beneglected.[FN*]A fact-finding hearing ensued and, at the close of petitioner's case, the father moved to dismissthe petition on the ground that petitioner failed to make out a prima facie case of neglect. FamilyCourt denied the motion and, at the conclusion of the hearing, found the father to have neglectedthe children. The matter proceeded to disposition and, after denying the father's motion todismiss the petition pursuant to Family Ct Act § 1051 (c), the court issued a suspendedjudgment for 12 months upon the father's compliance with certain terms and conditions. Thefather now appeals.
We disagree with the father's assertion that Family Court erred in denying his motion todismiss the neglect proceeding pursuant to Family Ct Act § 1051 (c) because the court'said was no longer required. He claims that he did not pose a continuing risk to the children since,at the time of disposition, he had been living in Ohio for over a year and had separated from themother, who had custody of the children and was under the supervision of petitioner. Theevidence established, however, that he continues to visit with the children and has failed to takeany steps to remedy the problems upon which the neglect proceeding was based. Moreover, thechildren are still minors and the finding of past neglect could prove significant in any future courtproceeding (see Matter of Mary KateVV., 59 AD3d 873, 874 [2009], lv denied 12 NY3d 711 [2009]; Matter ofLewis T., 249 AD2d 646, 647 [1998]). Under these circumstances, Family Court did not errin denying the father's motion to dismiss under Family Ct Act § 1051 (c) (see Matter of Sharnaza Q. [ClarenceW.], 68 AD3d 436 [2009]; Matter of Mary Kate VV., 59 AD3d at 874-875;Matter of A.G., 253 AD2d 318, 328 [1999]).
The father next argues that Family Court erred in denying his motion to dismiss the petitionat the close of petitioner's proof because petitioner failed to establish a prima facie case ofneglect. "To establish neglect, petitioner [was required] to demonstrate, by a preponderance ofthe evidence, that the child[ren's] physical, mental or emotional condition was harmed or is inimminent danger of such harm as the result of the parent's failure to exercise a minimum degreeof care" (Matter of Joseph RR. [LynnTT.], 86 AD3d 723, 724 [2011] [internal quotation marks and citations omitted];see Family Ct Act § 1012 [f] [i] [B]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; Matter of Mitchell WW. [AndrewWW.], 74 AD3d 1409, 1412 [2010]). Significantly, "[a]ctual injury or impairment neednot be demonstrated; rather, 'only an imminent threat that such injury or impairment may result'is required" (Matter of Paige AA.[Anthony AA.], 85 AD3d 1213, 1215 [2011], lv denied 17 NY3d 708 [2011],quoting Matter of Shalyse WW., 63AD3d 1193, 1195-1196 [2009], lv denied 13 NY3d 704 [2009]; see Matter ofJoseph RR. [Lynn TT.], 86 AD3d at 724).
Here, the evidence presented by petitioner established that the father engaged in repeatedinstances of domestic violence with the mother, many of which were witnessed by the children.The mother testified to an incident that occurred in 2009, during which the father pinned her tothe floor against her will and, while on top of her, forcibly removed her clothes while at least twoof the children were present in the room. Furthermore, petitioner's caseworkers testified that thetwo oldest children reported multiple acts of domestic violence within the home. One of thosechildren related that the father hit the mother in the face, threatened to kick her in the face andslammed her finger in a door, which caused the child to become scared and fear for her mother'ssafety. Another child reported that the father "would not [*3]stopsmacking his mom" and disclosed an incident where the father "punched" the mother into a wall,causing the child to intervene by attempting to push the father away from his mother. Proof wasalso presented that the father was aware that marihuana use was occurring in the home while thechildren were present and that the children's babysitter was bringing drugs, including crackcocaine, into the home and was using marihuana while caring for all five children, yet hecontinued to allow the babysitter to care for his children. Viewing the evidence in a light mostfavorable to petitioner (see Matter ofChristian Q., 32 AD3d 669, 670 [2006]; Matter of Richard SS., 29 AD3d 1118, 1119-1120 [2006]), we findthat it established a prima facie case of conduct by the father that "constituted a departure fromthe minimum degree of care which should be exercised by a reasonable and prudent parent inorder to prevent a risk of impairment to the child[ren] or imminent danger of impairment" (Matter of Armani KK. [Deborah KK.],81 AD3d 1001, 1002 [2011], lv denied 16 NY3d 711 [2011] [internal quotationmarks and citations omitted]; see Matter of Paige AA. [Anthony AA.], 85 AD3d at1216-1217; Matter of Kaleb U. [HeatherV.—Ryan U.], 77 AD3d 1097, 1099 [2010]; Matter of Lindsey BB. [Ruth BB.], 70 AD3d 1205, 1206 [2010]; Matter of Christopher B., 26 AD3d431, 432 [2006]). Accordingly, Family Court properly denied the motion to dismiss thepetition at the close of petitioner's proof.
Rose, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The mother consented to afinding of neglect with respect to all five children and received a suspended judgment.