| Matter of Dustin P. |
| 2008 NY Slip Op 10379 [57 AD3d 1480] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Dustin P., an Infant. Oneida County Department ofSocial Services, Respondent; Richard P., Appellant, et al., Respondents. |
—[*1] John G. Koslosky, Law Guardian, Utica, for Dustin P.
Appeal from an order of the Family Court, Oneida County (Joan E. Shkane, J.), entered August31, 2007 in a proceeding pursuant to Family Court Act article 10. The order, insofar as appealed from,adjudged that respondent Richard P. neglected his son.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order adjudicating his son to be a neglectedchild. Contrary to the contention of the father, Family Court properly denied his motion to dismiss thesecond amended petition at the close of petitioner's proof inasmuch as petitioner established a primafacie case of neglect by presenting evidence of " 'both parental misconduct and harm or potential harmto [the] child' " (Matter of Kenneth V. [appeal No. 2], 307 AD2d 767, 768 [2003]). Aparent's "failure to provide medical care as required by [Family Court Act § 1012 (f) (i) (A)]may be interpreted to include psychiatric medical care where it is necessary to prevent the impairmentof the child's emotional condition" (Matter of Felicia D., 263 AD2d 399, 399 [1999]). Here,petitioner presented evidence that the child's behavioral issues, which included suicidal and homicidalideations, were a direct result of the conflict among the child's three caregivers, i.e., the father, themother, and the stepmother. The father, however, refused to pursue the recommended family therapyand did not offer an alternative form of treatment until the child had sustained a spinal fracture afterjumping out of a second-floor window at the father's residence (see e.g. Matter of William AA., 24 AD3d 1125, 1126-1127 [2005],lv denied 6 NY3d 711 [2006]; Matter of Perry S., 22 AD3d 234 [2005]). The father thus breached his"nondelegable affirmative duty to provide [his] child with adequate medical care" (Matter ofHofbauer, 47 NY2d 648, 655 [1979]). The father failed to rebut petitioner's prima facie case (see generally Matter of Kayla C., 19 AD3d692, 693 [2005]), and we conclude that the finding of neglect is supported by a preponderance ofthe evidence (see Family Ct Act § 1046 [b] [i]; Matter of Amanda M., 28 AD3d 813, 815 [2006]).Present—Hurlbutt, J.P., Martoche, Fahey and Gorski, JJ.