| Matter of Alfonzo H. (Cassie L.) |
| 2010 NY Slip Op 06964 [77 AD3d 1410] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Alfonzo H., a Child Alleged to be Neglected. OnondagaCounty Department of Social Services, Appellant; Cassie L. et al.,Respondents. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), forrespondent-respondent Cassie L. James E. Corl, Jr., Attorney for the Child, Cicero, for Alfonzo H.
Appeal from an order of the Family Court, Onondaga County (Bryan R. Hedges, J.), entered May12, 2009 in a proceeding pursuant to Family Court Act article 10. The order dismissed the petition.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion in part and reinstating the petition against respondent Alfonzo H. insofar as the petitionalleges that his alcohol abuse impairs his ability to safely care for the subject child and as modified theorder is affirmed without costs, and the matter is remitted to Family Court, Onondaga County, toreopen the fact-finding hearing on that part of the petition.
Memorandum: In this proceeding pursuant to article 10 of the Family Court Act, petitionercontends on appeal that Family Court erred in granting the motion of respondent parents to dismiss thepetition at the close of petitioner's proof on the ground that petitioner failed to establish a prima faciecase of neglect. Contrary to the contention of petitioner, we conclude that petitioner failed to establishby a preponderance of the evidence that the subject child's "physical, mental or emotional conditionha[d] been impaired or [was] in imminent danger of becoming impaired" as a result of the allegedincidents of domestic violence between the child's parents (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see Matter of Ravern H., 15 AD3d991, 992 [2005], lv denied 4 NY3d 709 [2005]). We agree with petitioner, however,that the court erred in dismissing the petition against respondent father insofar as the petition alleges thathis "alcohol abuse impairs his ability to safely care for [the child]" (see generally Family Ct Act§ 1046 [a] [iii]), and we therefore modify the order accordingly. Petitioner submitted evidencethat police intervention was required on several occasions during which the father engaged in violenceagainst respondent mother while he was intoxicated (see Matter of Department of Social [*2]Servs. v Janna C., 237 AD2d 603, 604 [1997]; cf. Matter of Anna F., 56 AD3d 1197[2008]). Viewing the evidence in the light most favorable to petitioner, we conclude that petitionerestablished a prima facie case with respect to that issue (see generally Matter of Ryan D., 125AD2d 160, 166 [1987]). Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.