| Matter of Kaleb U. (Heather V.\MRyan U.) |
| 2010 NY Slip Op 07438 [77 AD3d 1097] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kaleb U., a Child Alleged to be Neglected.Columbia County Department of Social Services, Respondent; Heather V., Appellant, et al.,Respondent. Ryan U., Respondent. |
—[*1] Megan Mercy, Columbia County Department of Social Services, Hudson (James Carlucci ofcounsel), for Columbia County Department of Social Services, respondent. Cliff Gordon, Monticello, for Ryan U., respondent. Sheila Hurley, Catskill, attorney for the child.
Spain, J.P. Appeal from an order and an amended order of the Family Court of ColumbiaCounty (Nichols, J.), entered October 21, 2009 and November 19, 2009, which grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate thesubject child to be neglected.
Respondent Heather V. (hereinafter the mother) and Ryan U. (hereinafter the father) are theunmarried parents of a son (born in 2003) (hereinafter the child). The child was diagnosed withleukemia in June 2008. Pursuant to a custody order, made on consent in Columbia County, theparents shared joint legal and physical custody. The father resides with his girlfriend in ColumbiaCounty and the mother lives in Dutchess County with her fiancÉ, respondent Shaun RR.(hereinafter the fiancÉ), her elder son and the fiancÉ's daughter.
In May 2009, petitioner commenced this proceeding against the mother and the fiancÉalleging, among other things, that they had alcohol abuse problems which resulted in violentaltercations between them while the child was in their care. At the initial hearing on the neglectpetition, at which the father appeared with counsel, Family Court issued a temporary order ofprotection that also granted the father temporary custody of the child with supervised visitation tothe mother.[FN1]After the fact-finding hearing, Family Court found that the mother and the fiancÉ hadneglected the child, in that they had abused alcohol and engaged in acts of violence in thepresence of and close proximity to the child, causing risk to his health and safety. At theconclusion of the subsequent dispositional hearing, the court ordered that the mother and thefiancÉ be placed under the supervision of petitioner, that the child be placed in the custodyof the father (see Family Ct Act § 1055) and, in an order of protection, that themother's access to the child be supervised for 12 months. The mother now appeals.[FN2]
In this Family Ct Act article 10 proceeding, petitioner bears the burden of proving neglect bya preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). To establishneglect, petitioner was required to show "first, that a child's physical, mental or emotional [*2]condition has been impaired or is in imminent danger of becomingimpaired and second, that the actual or threatened harm to the child is a consequence of thefailure of the parent or caretaker to exercise a minimum degree of care in providing the childwith proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; seeFamily Ct Act § 1012 [f] [i] [B]; Matter of Shiree G. [Robert E.], 74 AD3d 1416, 1417 [2010]).Imminent danger "must be near or impending, not merely possible"; thus, petitioner must show"serious harm or potential harm to the child, not just . . . what might be deemedundesirable parental behavior" (Nicholson v Scoppetta, 3 NY3d at 369; see Matter of Anthony Y. [KellyAA.—Paul AA.], 72 AD3d 1419, 1421 [2010]; Matter of John O., 42 AD3d 687,687 [2007]). "As to the second element of neglect, parental behavior must be evaluatedobjectively by using the reasonable and prudent parent standard" (Matter of Richard T., 12 AD3d986, 987 [2004] [citation omitted]; see Matter of Anthony Y. [Kelly AA.—PaulAA.], 72 AD3d at 1421), and Family Court's findings of fact are accorded deference and willnot be disturbed unless they lack a sound and substantial basis in the record (see Matter of Karissa NN., 19 AD3d766, 766 [2005]).
The record fully supports Family Court's conclusion that the mother's actions created anunreasonable risk of imminent danger to the child's health and safety and that the mother failed toexercise a minimum degree of care with respect to the child. The testimony of the mother'steenaged nieces, which the court found to be credible, established that, on the evening of March2, 2009, the mother became intoxicated and engaged in bizarre behavior in a moving vehicle byhanging out the front passenger window, singing and yelling at cars and smacking thefiancÉ "really hard" in the face when he tried to pull her back in the vehicle. The child waspresent in the back seat. Their testimony also demonstrated that the child was upset by themother's dangerous behavior and that, later that night, the intoxicated mother punched thefiancÉ in the course of an argument causing him to suffer a bloody nose and a black eye.Although the child did not directly witness this incident, the testimony supports the conclusionthat he was aware of it and was frightened. Petitioner also presented evidence that the mother andthe fiancÉ had engaged in argumentative and violent behavior—choking eachother—on another occasion when the child was present and the child had attempted tointervene, telling the fiancÉ to "[l]et go of my mommy." That testimony was amplycorroborated by the child's out-of-court statements to a child protective caseworker which wereproperly received as substantive evidence of the mother's aggressive behavior, often after herconsumption of alcohol, and of her tumultuous relationship with the fiancÉ (seeFamily Ct Act § 1046 [a] [vi]; Matter of Kole HH., 61 AD3d 1049, 1051 [2009], lvdismissed 12 NY3d 898 [2009]). Viewing the mother's pattern of behavior objectively, thereis a sound and substantial basis for Family Court's neglect finding against her (see Matter of Michael WW., 20 AD3d609, 611-612 [2005]; Matter of Karissa NN., 19 AD3d at 767; Matter of TamiG., 209 AD2d 869, 870 [1994], lv denied 85 NY2d 804 [1995]; compare Matter of Alyssa OO. [AndrewPP.], 68 AD3d 1158, 1160-1161 [2009]; Matter of Shannon ZZ., 8 AD3d 699, 701 [2004]; Matter of Jerrica J., 2 AD3d 1161,1163 [2003]). Significantly, throughout the period during which these incidents occurred, thechild's health was already compromised, a special vulnerability to be taken into account in theassessment of the requisite minimum degree of care (see Nicholson v Scoppetta, 3 NY3dat 370-371; Matter of Sayeh R., 91 NY2d 306, 315 [1997]).[*3]
We next reject the mother's assertion that Family Court'sdispositional order should have allowed her to have unsupervised visitation with the child. A"dispositional order must reflect a resolution consistent with the best interests of the child[ ] afterconsideration of all relevant facts and circumstances" (Matter of Alaina E., 33 AD3d 1084, 1087 [2006]; see Matter of Elijah Q., 36 AD3d974, 976 [2007], lv denied 8 NY3d 809 [2007]), and "[t]he determination of whethervisitation should be supervised is a matter left to Family Court's sound discretion and it will notbe disturbed as long as there is a sound and substantial basis in the record to support it" (Matter of Taylor v Fry, 47 AD3d1130, 1131 [2008] [internal quotation marks and citation omitted]; see Matter of Isaac Q., 53 AD3d731, 731 [2008]; Matter of Peet vParker, 23 AD3d 940, 941 [2005]).
Here, the record reflects that, on more than one occasion, the mother engaged in violentarguments with the fiancÉ in front of their children, used marihuana while caring for thisvulnerable child and submitted a diluted urine sample to a drug test in May 2009. Although themother testified at the dispositional hearing that she and the fiancÉ were attending aweekly couples counseling program, the evidence suggests that their domestic violence issueswere not being fully addressed in that program. Considering all of the circumstances of this case,we do not find that Family Court's dispositional order was an abuse of discretion (see Matter of Pettengill v Kirley, 25AD3d 935, 935-936 [2006]).
Rose, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order and amendedorder are affirmed, without costs.
Footnote 1: Although the father was notmade a party to this Family Ct Act article 10 proceeding, he appeared and actively participatedthroughout this combined hearing (see Family Ct Act § 1035 [d]), based on hispending petitions for modification of custody and alleged violations of the existing joint custodyorder. The father withdrew his petitions after Family Court rendered its dispositional decision inthe within proceeding.
Footnote 2: Family Court issued an amendedorder of fact-finding and disposition that was identical to the first except for the addition of aspecific finding that the mother and the fiancÉ had both been "drinking" on the evening ofMarch 2, 2009. The fiancÉ has not appealed either order.