| Matter of Tylasia B. (Wayne B.) |
| 2010 NY Slip Op 03438 [72 AD3d 1074] |
| April 27, 2010 |
| Appellate Division, Second Department |
| In the Matter of Tylasia B., a Child Alleged to be Neglected.Suffolk County Department of Social Services, Respondent; Wayne B. Appellant. (ProceedingNo. 1.) In the Matter of Wayne B., Jr., a Child Alleged to be Neglected. Suffolk CountyDepartment of Social Services, Respondent; Wayne B., Appellant. (Proceeding No.2.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Brian B. Mulholland of counsel), forrespondent. Stephen R. Hellman, Esq., P.C., West Sayville, N.Y., attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, WayneB. appeals from an order of fact-finding and disposition of the Family Court, Suffolk County(Tarantino, Jr., J.), dated April 8, 2009, which, after, inter alia, a fact-finding hearing, found thathe neglected Tylasia B. and, in effect, derivatively neglected Wayne B., Jr., and, among otherthings, directed him to enter a substance abuse program and undergo drug testing.
Ordered that the order is affirmed, without costs or distributions.
To establish neglect in a child protective proceeding, the petitioner must show "first, that achild's physical, mental, or emotional condition has been impaired or is in imminent danger ofbecoming impaired and second, that the actual or threatened harm to the child is a consequenceof the failure of the parent or caretaker to exercise a minimum degree of care in providing thechild with proper supervision or guardianship" (Matter of Tajani B., 49 AD3d 874, 875 [2008] [internal quotationmarks omitted]; see Nicholson vScoppetta, 3 NY3d 357, 368 [2004]; Matter of Lester M., 44 AD3d 944 [2007]; Matter of Dimitriy R., 39 AD3d866 [2007]; Family Ct Act § 1012 [f]). In the instant case, the Family Court's findingthat the father neglected his eight-year-old daughter, Tylasia B., was supported by apreponderance of the evidence (see Family Ct Act § 1012 [f] [i] [B]; § 1046[b] [i]). The nonhearsay evidence presented at the fact-finding hearing was sufficient to establishthat the father allowed Tylasia B. to ride in a car driven by her mother when he knew or shouldhave known that the mother was intoxicated (see e.g. Matter of Carlena B., 61 [*2]AD3d 752 [2009]; Matter of Lester M., 44 AD3d 944 [2007]; Matter of MiyaniM., 4 AD3d 430 [2004]; Matter of Kanika M., 270 AD2d 490 [2000]; Matter ofK. Children, 253 AD2d 764 [1998]; Matter of R.W. Children, 240 AD2d 207[1997]). In addition, following the fact-finding hearing, the father admitted to ongoing substanceabuse (see Matter of Issiah C., 24AD3d 438 [2005]).
Since the evidence of neglect as to Tylasia B. demonstrated such an impaired level ofparental judgment as to create a substantial risk of harm for other children in the father's care, theFamily Court properly, in effect, found that the other child, Wayne B., Jr., was derivativelyneglected (see Family Ct Act § 1046 [a] [i]; Matter of Carlena B., 61AD3d at 752; Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d533, 534 [1997]). The requirement that the father enter a substance abuse program and undergodrug testing was in the best interests of the children (see Matter of Carlena B., 61 AD3dat 752; Matter of Commissioner of Social Servs. of City of N.Y. v Leona W., 192 AD2d602, 603 [1993]).
The father's remaining contention is without merit (see Matter of James HH., 234AD2d 783, 785 [1996]). Skelos, J.P., Austin, Roman and Sgroi, JJ., concur.