| Matter of Shiree G. (Robert E.) |
| 2010 NY Slip Op 04678 [74 AD3d 1416] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Shiree G. and Another, Children Alleged to beNeglected. Albany County Department for Children, Youth And Families, Respondent; RobertE., Appellant. |
—[*1]
Mercure, J.P. Appeal from an order of the Family Court of Albany County (Maney, J.),entered March 11, 2009, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to beneglected.
During the time period relevant to this proceeding, respondent resided with the subjectchildren (born in 2004 and 2006) and their mother, and concedes that he was legally responsiblefor the children's care. In October 2007, respondent initiated a physical altercation with themother, who was pregnant, during a home visit by a caseworker investigating a report ofdomestic violence. Respondent allegedly grabbed the mother and hurled her into a wall whileattempting to wrestle a cell phone away from her, prompting the mother—who wasscreaming at the caseworker to call 911—to grab a knife and hold it to respondent's throat.The caseworker [*2]testified that the children wereapproximately two feet away from respondent and the mother and were visibly terrified,screaming, hysterically crying and reaching for the mother. Respondent left the residence whenthe caseworker told him that the police were on their way.
Thereafter, petitioner commenced this proceeding against respondent alleging that heneglected the children due to, among other things, the October 2007 incident. Following ahearing, Family Court found that respondent had neglected the subject children, and this appealensued.[FN*]
We affirm. "[A] party seeking to establish neglect must show, by a preponderance of theevidence, first, that a child's physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired and second, that the actual or threatened harm to thechild is a consequence of the failure of the parent or caretaker to exercise a minimum degree ofcare in providing the child with proper supervision or guardianship" by unreasonably inflictingharm or a substantial risk thereof (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004] [citation omitted];accord Matter of Alyssa OO. [AndrewPP.], 68 AD3d 1158, 1159 [2009]; see Family Ct Act § 1012 [f] [i] [B]).Here, given the caseworker's testimony regarding the children's terrorized response to theincident of domestic violence instigated by respondent against the mother, a sound andsubstantial basis supports Family Court's conclusion that respondent's actions endangered thewell-being of the children and, thus, constituted neglect (see Matter of Michael WW., 20 AD3d 609, 611-612 [2005]; Matter of Karissa NN., 19 AD3d766, 766-767 [2005]; Matter ofRichard T., 12 AD3d 986, 987-988 [2004]; cf. Matter of Alyssa OO. [AndrewPP.], 68 AD3d at 1160-1161).
Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: A separate proceeding allegingthat respondent abused the subject children and his newborn son, who had suffered a fracturedskull, was dismissed.