| Matter of Heyden Y. (Miranda W.) |
| 2014 NY Slip Op 04994 [119 AD3d 1012] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Heyden Y., a Child Alleged to beNeglected. Otsego County Department of Social Services, Respondent; Miranda W.,Appellant, et al., Respondent. |
Monica Carrascoso, Cooperstown, for appellant.
Steven Ratner, Otsego County Department of Social Services, Cooperstown, forrespondent.
Thomas F. Garner, Middleburgh, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Otsego County (Lambert, J.),entered June 3, 2013, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondents' child to be neglected.
Respondent Miranda W. (hereinafter respondent) and respondent Cory Y.(hereinafter the father) are the unmarried parents of a child (born in 2010). Since thechild's birth, he has lived with the maternal grandmother, who obtained custody of him inSeptember 2011. In April 2012, petitioner commenced this neglect proceeding againstrespondent and the father based upon allegations of, among other things, unsuitableliving conditions, incidents of domestic abuse, and drug use by the father. The fathersubsequently admitted that he had engaged in a physical altercation with respondent infront of the child, as part of an agreement by which he received an adjournment incontemplation of dismissal. Following a fact-finding hearing, Family Court concludedthat respondent had neglected the child. Respondent and the father consented to [*2]the continuation of custody with the maternal grandmotherfor one year. Respondent appeals from the court's order of fact-finding and disposition,and we affirm.
Initially, respondent contends that she is not a proper respondent to this proceeding,as the maternal grandmother has always been the child's primary caretaker. We disagree.As the child's biological mother, she meets the statutory requirement that a respondent ina Family Ct Act article 10 proceeding be either a "parent or other person legallyresponsible for a child's care" (Family Ct Act § 1012 [a] [emphasis added]).She is thus a proper party, without regard to whether she was also a " '[p]ersonlegally responsible' " for the child's care at the pertinent time (Family Ct Act§ 1012 [g]; seeMatter of Erica B. [Quentin B.], 79 AD3d 415, 415 [2010], lv denied 16NY3d 703 [2011]; see also Family Ct Act § 1013 [d]).[FN*]
In a neglect proceeding, the petitioner bears the burden of establishing, "by apreponderance of the evidence, that the child[ ]'s physical, mental or emotional conditionwas harmed or is in imminent danger of such harm as the result of the parent's failure toexercise a minimum degree of care" (Matter of Daniel X. [Monica X.], 114 AD3d 1059, 1060[2014] [internal quotation marks and citation omitted]; see Family Ct Act§§ 1012 [f] [i]; 1046 [b] [i]; Matter of Josephine BB. [Rosetta BB.], 114 AD3d 1096,1097 [2014]). In determining whether a parent has failed to exercise the requisite degreeof care, we evaluate whether "a reasonable and prudent parent [would] have so acted, orfailed to act, under the circumstances then and there existing" (Nicholson v Scoppetta, 3NY3d 357, 370 [2004]; seeMatter of Afton C. [James C.], 17 NY3d 1, 9 [2011]).
Based upon the record before us, we agree with Family Court that petitioner met thisburden and established the relevant allegations of the petition by a preponderance of theevidence. Respondent's half brother testified that, in March 2012, he visited respondent'shome and took numerous photographs, which were admitted into evidence at thefact-finding hearing. The half brother testified that, as illustrated in the photographs,respondent's home was a "mess," and was unsafe given the presence of cluttered piles ofclothing and other objects, including numerous cigarette butts, animal feces in the livingroom near the child's toys, and multiple spoons covered with a "chalky, powdery typesubstance," the majority of which were located in the bathroom. The father testified at thefact-finding hearing that he had a longstanding history of drug and alcohol abuse thatallegedly ended in mid-2012, when he entered a rehabilitation program. The fatheracknowledged that ongoing domestic violence had continued throughout his relationshipwith respondent, including a physical altercation in December 2010 and an incident inNovember 2011, both of which occurred in the child's presence. The father stated that hehad been arrested for harming respondent on several occasions.
Documents in the record described a January 2012 incident in which respondentthrew an object at the father and he threw it back. In the course of this altercation,respondent ruptured her spleen and was required to undergo surgery. Following thisincident, respondent returned to living with the father. The maternal grandmothertestified that respondent "more or less" resided [*3]withthe father after the child's birth and that the child spent almost every weekend with them.The maternal grandmother stated that respondent told her about incidents of domesticviolence that occurred between respondent and the father "about every month" bothbefore and after the child's birth. The grandmother stated that she encouraged respondentto leave the father, but respondent refused to do so, stating that she was not always thevictim of domestic violence and, instead, was "giving it back to [the father]."
Viewed cumulatively, the evidence of the condition of respondent's home (see Matter of Draven I. [JenlynI.], 86 AD3d 746, 747-748 [2011]), her decision to permit the child to stay withher and the father on weekends despite the fact that she knew or should have knownabout his ongoing drug use (seeMatter of Taliya G. [Jeannie M.], 67 AD3d 546, 546 [2009]) and herparticipation in mutual incidents of domestic violence (see Matter of Anthony FF. [LisaGG.], 105 AD3d 1273, 1274 [2013]; Matter of Xavier II., 58 AD3d 898,900 [2009]), coupled with the strong adverse inference permitted by her decision not totestify (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d73, 79 [1995]; Matter of StevieR. [Arvin R.], 97 AD3d 906, 907 [2012]), amply support Family Court's findingof neglect (see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b][i]).
Peters, P.J., Lahtinen, Rose and Devine, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *:The record evidencewould also support a finding that respondent, who regularly exercised unsupervisedparenting time with the child, qualified as a "person legally responsible" for the child(see Matter of Brian TT., 246 AD2d 826, 827 [1998]; see also Matter of Harmony S.,22 AD3d 972, 973 [2005]).