| Matter of Darcy Y. (Christopher Z.) |
| 2013 NY Slip Op 00970 [103 AD3d 955] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Darcy Y. and Another, Children Alleged toBe Neglected. Ulster County Department of Social Services, Respondent; Christopher Z.,Appellant. |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, forrespondent. Marian B. Cocose, Bearsville, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Ulster County (McGinty,J.), entered January 5, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.
On the afternoon of August 7, 2011, respondent and his live-in girlfriend of threeyears (hereinafter the mother) attended a family wedding with the children who are thesubject of this proceeding. When the group left the reception later that evening, themother was driving, and respondent, the mother's two children and respondent's niecewere passengers in the vehicle. Shortly thereafter, a local police officer pulled over themother's vehicle due to an equipment violation and, after detecting a "strong odor ofalcoholic beverage coming from the vehicle," administered field sobriety tests to themother. The mother was arrested, and respondent and the children walked to a friend'shouse nearby.
Petitioner thereafter commenced separate neglect proceedings against respondent and[*2]the mother. The proceeding against the mother wasadjourned in contemplation of dismissal following the mother's admission that sheoperated a motor vehicle with her children in the back seat while under the influence ofalcohol—specifically, with a blood alcohol level of .10%. Following a hearing,Family Court found that respondent neglected the subject children by allowing themother to operate a motor vehicle under those circumstances. As to disposition, FamilyCourt, among other things, placed respondent under the supervision of petitioner for oneyear. This appeal by respondent ensued.[FN*]
We affirm. Initially, respondent does not dispute—and the record supportsFamily Court's finding—that respondent is a person legally responsible for thechildren's care (see Family Ct Act § 1012 [g]). To that end, a child may beadjudicated to be neglected when a parent or caretaker "knew or should have known ofcircumstances which required action in order to avoid actual or potential impairment ofthe child and failed to act accordingly" (Matter of Kimberly Z. [Jason Z.], 88 AD3d 1181, 1185[2011] [internal quotation marks and citations omitted]; accord Matter of Stevie R. [ArvinR.], 97 AD3d 906, 907 [2012]; see Matter of Alaina E., 33 AD3d 1084, 1086 [2006])."The parental [or custodial] behavior asserted as a basis for neglect is measured againstthe behavior of a reasonable and prudent parent faced with the same circumstances" (Matter of Michael VV. [ArthurVV.], 68 AD3d 1210, 1211 [2009] [internal quotation marks and citationsomitted]).
Contrary to respondent's assertion, the issue is not whether the record demonstratesthat he was intoxicated on the night in question; rather, the relevant inquiry is whetherthe record as a whole supports the finding that respondent knew or should have knownthat the mother was intoxicated and, therefore, neglected the children by allowing themto ride in a car operated by her. Although respondent contends that he spent very littletime with the mother during the approximately seven hours that they were at the weddingreception, did not "directly" see her consume any alcohol, did not smell any alcohol onher breath and did not witness anything in her demeanor that would have suggested thatshe was intoxicated, his testimony stands in marked contrast to the police officer'sobservations regarding the "strong odor" of alcohol emanating from the mother's vehicleand the mother's admission that she was operating a motor vehicle with a blood alcohollevel of .10%. This conflict in the testimony presented a credibility issue for FamilyCourt to resolve (see Matter ofPaige AA. [Anthony AA.], 85 AD3d 1213, 1216 [2011], lv denied 17NY3d 708 [2011]), and we are satisfied that the record indeed supports the finding thatrespondent neglected the children by allowing them to ride in a motor vehicle driven bytheir mother when he knew or should have known that the mother was intoxicated (see Matter of Bianca P. [TheodoreA.P.], 94 AD3d 1126, 1127 [2012]; Matter of Tylasia B. [Wayne B.], 72 AD3d 1074, 1075[2010], lv denied 15 NY3d 713 [2010]; cf. Matter of Draven I. [Jenlyn I.], 86 AD3d 746, 747[2011]). Respondent's remaining arguments, to the extent not specifically addressed,have been examined and found to be lacking in merit.[*3]
Peters, P.J., Lahtinen and Garry, JJ., concur.Ordered that the order is affirmed, without costs.
Footnote *: In June 2012, FamilyCourt issued a modified order of fact-finding and disposition and "terminated" the orderfrom which this appeal is taken, which would have expired by its own terms in December2012. Nonetheless, as the underlying adjudication of neglect may have futureconsequences for respondent, the instant appeal is not moot (see Matter of Karissa NN., 19AD3d 766, 766 n [2005]).