| Matter of Brandon R. (James U.) |
| 2014 NY Slip Op 01216 [114 AD3d 1028] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Brandon R., a Child Alleged to beNeglected. Cortland County Department of Social Services, Respondent; JAMES U.,Appellant. (Proceeding No. 1.) In the Matter of Savannah U., a Child Alleged to beNeglected. Cortland County Department of Social Services, Respondent; James U.,Appellant. (Proceeding No. 2.) In the Matter of Brandon R., a Child Alleged to beNeglected. Cortland County Department of Social Services, Respondent; Jessica U.,Appellant. (Proceeding No. 3.) In the Matter of Savannah U., a Child Alleged to beNeglected. Cortland County Department of Social Services, Respondent; Jessica U.,Appellant. (Proceeding No. 4.) |
—[*1] Thomas H. Kheel, Ithaca, for Jessica U., appellant. Kathleen A. Sullivan, Cortland County Department of Social Services, Cortland, forrespondent. Ronald T. Walsh, Cortland, attorney for the children.
Rose, J. Appeals from two orders of the Family Court of Cortland County (Ames, J.),entered September 21, 2011, which granted petitioner's applications, in four proceedingspursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.
Respondent Jessica U. (hereinafter the mother) is the mother of Brandon R. (born in[*2]1998) and Savannah U. (born in 2009). RespondentJames U. (hereinafter the father) is the father of Savannah and, at the time of the eventsalleged in the petitions in these proceedings, he was a person responsible for the care ofBrandon.[FN*]When a search warrant based upon information that respondents were involved innarcotic trafficking was executed at their residence, marihuana, drug paraphernalia andnumerous hydrocodene, clonidine and oxycontin pills were found. The father was thenarrested and charged with criminal possession of a controlled substance in the thirddegree and endangering the welfare of a child, and petitioner commenced theseproceedings seeking to have the children adjudicated as neglected. Family Court held afact-finding hearing and concluded that the children were neglected. Respondents thenconsented to a dispositional order, and they now appeal the finding of neglect.
We affirm. Contrary to respondents' contention, the fact that the children were notpresent when the search warrant was executed does not require a different result in lightof the drugs found in areas accessible to the children, the father's admissions that he solddrugs from the home and the admissions of regular drug use by both respondents."Actual injury or impairment need not be found, as long as a preponderance of theevidence establishes that the [children are] in imminent danger of either injury orimpairment" (Matter of Catherine KK., 280 AD2d 732, 734 [2001] [internalquotation marks and citation omitted]; see Matter of Jared M. [Ernesto C.], 99 AD3d 474, 475[2012]). While the father relies on evidence that he was participating in a rehabilitationprogram as proof that his drug use was not evidence of neglect, the record also showsthat he had tested positive for an illegal substance while in treatment and that hisparticipation was not truly voluntary because he entered the program only after he wasarrested for selling drugs (seeMatter of Amber DD., 26 AD3d 689, 690 [2006]; see also Matter of Keira O., 44AD3d 668, 670-671 [2007]).
In addition to the drugs found in the home and respondents' admitted use of drugs,there was evidence that while respondents were living in North Carolina, another child oftheirs (born in 2006) was removed from their custody shortly after birth and determinedto be neglected. That determination was based on the mother and child testing positivefor cocaine, the mother's use of marihuana, the abuse of prescription drugs and cocaineby both respondents and their acts of domestic violence in the presence of that child.When respondents failed to visit the child, continued to use drugs, did not complete anydrug treatment program and then moved to New York before the completion of theproceedings, the North Carolina court found that they had neglected and abandoned theirchild. This evidence was admissible on the issue of respondents' neglect of the twochildren who are the subject of this proceeding (see Family Ct Act § 1046[a] [i]; Matter of Shannen AA.[Melissa BB.], 80 AD3d 906, 909 [2011], lv denied 16 NY3d 709[2011]; Matter of Christopher O., 211 AD2d 980, 981 [1995]).
Accordingly, we find a sound and substantial basis in the record to support Family[*3]Court's determination that these children were inimminent danger based on the sale of drugs from the home and respondents' continueddrug abuse (see Matter of SarahA. [Daniel A.], 109 AD3d 467, 467 [2013]; Matter of Stevie R. [Arvin R.], 97 AD3d 906, 907 [2012];Matter of Ciara Z., 58 AD3d 915, 918 [2009]). We have considered respondents'remaining contentions and find them to be without merit.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: Respondents weremarried after the petitions in these proceedings were filed.