| Matter of Shalyse WW. |
| 2009 NY Slip Op 04308 [63 AD3d 1193] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Shalyse WW. and Others, Children Alleged to beNeglected. Broome County Department of Social Services, Respondent. Lisa XX. et al.,Appellants. |
—[*1] William A. Brenner, Grahamsville, for Carl WW., appellant. Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent. F. Daniel Casella, Law Guardian, Binghamton.
Peters, J.P. Appeals from two orders of the Family Court of Broome County (Pines, J.),entered February 23, 2007 and September 18, 2007, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate respondents' children to beneglected.
Respondents are the parents of three children, Shalyse WW. (born in 1998), Shareka WW.(born in 2001) and Luke WW. (born in 2005). On May 21, 2006, police responded torespondents' residence after receiving a 911 call that a man with a gun was chasing a woman andher children. According to statements made by respondent Lisa XX. (hereinafter the mother) topolice immediately after the incident and petitioner's caseworker the following day, respondentCarl WW. (hereinafter the father) had been smoking crack cocaine for the previous three days[*2]while locked inside the parties' bedroom when he suddenlyemerged brandishing a loaded shotgun and accusing her of bringing "predators" into the home.Threatening to kill her if he found anyone in the home, the father then took both the mother andthe three children from room to room searching for the purported intruders. When the fathermomentarily left the family in the dining room to continue his search, the mother fled with thechildren out of the rear of the residence. Upon discovering this, the father exited the residenceand, proclaiming that "he was going to kill her," chased the mother and children with the shotgunas they escaped through a wooded area.
Following the incident, the father, who was described as sweating and agitated, was arrestedat the parties' home. The house was found to be in extreme disarray and a search by policerevealed a loaded shotgun, shotgun shells and a knife, as well as positive indications for thepresence of narcotics in those locations where the mother had indicated that the father kept hiscocaine. Two days later, the mother filed a family offense petition against the father and wasgranted a no-contact temporary order of protection in favor of herself and the children. In herpetition, the mother provided a detailed account of the incident entirely consistent with hersworn statements to police and the caseworker, and also set forth allegations of previous abuseby the father, including strangling her while holding a knife to her head, punching her in thepresence of the children and threats made towards her while in possession of a weapon. Thefollowing day, petitioner's caseworker met personally with the mother, who again emotionallydescribed the events that had transpired days earlier. At that time, the two older childrencorroborated the horrific facts of the incident relayed by the mother and stated that they werescared of the father.
Approximately a month later, despite the order of protection, respondents were observedtogether with their children in a local hardware store. At a July 5, 2006 hearing, the motherrecanted the allegations contained in her family offense petition, resulting in the dismissal of thepetition by Family Court. The next day, petitioner temporarily removed respondents' children onan emergency basis (see Family Ct Act § 1024), which was approved by order ofFamily Court the following day. Petitioner then commenced this neglect proceeding against bothrespondents.
At the fact-finding hearing, the father denied the allegations in the petition and the mothertestified that she had fabricated both the events of May 21, 2006 as well as the allegations ofprior domestic abuse by the father contained in her family offense petition. Family Court foundthe mother's prior statements to be credible, rejected her recantation and explanation as notcredible and adjudicated the children to have been neglected. Following a dispositional andpermanency hearing, Family Court continued placement of the children with petitioner for anadditional 12 months. These appeals by respondents followed.[FN*]
"[A] party seeking to establish neglect must show, by a preponderance of the evidence, first,that a child's physical, mental or emotional condition has been impaired or is in imminent [*3]danger of becoming impaired and second, that the actual orthreatened harm to the child is a consequence of the failure of the parent or caretaker to exercisea minimum degree of care in providing the child with proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d357, 368 [2004] [citation omitted]; see Family Ct Act § 1012 [f] [i]; Matter of Rebecca KK., 51 AD3d1086, 1087 [2008]; Matter ofKrista LL., 46 AD3d 1209, 1210 [2007]). Significantly, a finding of neglect need not bebased upon actual injury or impairment, but only an imminent threat that such injury orimpairment may result (see Matter ofAiden L., 47 AD3d 1089, 1090 [2008]; Matter of Corey C., 20 AD3d 736, 737 [2005]). " 'Such a threatmay well be found to have resulted from a single incident or circumstance' " (Matter ofXavier II., 58 AD3d 898, 899 [2009], quoting Matter of Aiden L., 47 AD3d at 1090[citations omitted]; see Matter ofAntonio NN., 28 AD3d 826, 827 [2006]).
Here, Family Court's finding of neglect against the father was based upon the detailed andentirely consistent account of the May 21, 2006 incident which the mother provided to police,the caseworker and the court in her family offense petition, as well as her allegations ofnumerous prior instances of domestic abuse by the father. The mother's recantation of these priorstatements during the fact-finding hearing created a credibility issue for Family Court to resolve(see Matter of Kayla N., 41 AD3d920, 922 [2007]; Matter of Corey C., 20 AD3d at 737; Matter of Akia KK.,282 AD2d 839, 841 [2001]). According considerable deference to such credibility assessments(see Matter of Christian F., 42AD3d 716, 717 [2007]; Matter ofFrank Y., 11 AD3d 740, 742 [2004]), we will not disturb the court's decision to creditthe mother's initial statements regarding the May 21, 2006 incident and the father's history ofdomestic violence. Such conduct by the father amply supports a finding that he neglected thechildren.
We also find sufficient proof to sustain the finding of neglect as to the mother. The credibleevidence reveals that, despite the horrific events which unfolded on May 21, 2006, the priorinstances of domestic violence disclosed by the mother in her family offensepetition—several of which took place in the children's presence and one which resulted inthe oldest child receiving injuries while attempting to intervene—and the orders ofprotection issued at her request, the mother subsequently permitted the children to have contactwith the father on at least two occasions. The mother's actions in this regard, as well as herrecantation of the events that occurred on May 21, 2006, strongly suggest that she did notappreciate or recognize the imminent threat that the father posed to her children (see Matterof Xavier II., 58 AD3d at 900; Matter of Aiden L., 47 AD3d at 1090). Consideringthe totality of the circumstances, we find a sound and substantial basis in the record supportingFamily Court's finding that "the children were at imminent risk of impairment as a result of themother's failure to exercise a minimum degree of care" (Matter of Xavier II., 58 AD3d at900; see Matter of Paul U., 12AD3d 969, 971 [2004]).
Respondents also argue that Family Court erred in upholding petitioner's emergency removalof the children without a court order. Since a final order of disposition has been entered,however, any challenge to the temporary order of removal is moot (see Matter of JosephDD., 300 AD2d 760, 764-765 [2002], lv denied 100 NY2d 504 [2003]; Matter ofJoyce SS., 245 AD2d 962, 962 [1997]). Similarly, to the extent that the mother challengesFamily Court's September 2007 order continuing the children's placement with petitioner for 12months, inasmuch as this order expired by its own terms in September 2008, her appeal from thatorder is also moot (see Matter ofChelsea M., 61 AD3d 1030, 1032 [2009]; Matter of Kashayla L., 56 AD3d 962, 962-963 [2008]).
The father's remaining contentions, nearly all of which are raised for the first time on [*4]appeal, are either unpreserved or have been reviewed and found tobe without merit.
Spain, Rose, Kane and McCarthy, JJ., concur. Ordered that the order entered February 23,2007 is affirmed, without costs. Ordered that the appeal from the order entered September 18,2007 is dismissed, as moot, without costs.
Footnote *: Although respondentsimproperly appeal from Family Court's fact-finding decision rather than the subsequent order offact-finding, which was entered February 23, 2007, we exercise our discretion to treat the noticeof appeal as valid in the interest of justice (see Matter of Rebecca KK., 31 AD3d 830, 831 n [2006];Matter of Michael RR., 266 AD2d 709, 710 n 2 [1999]).