| Matter of Dakota CC. (Arthur CC.) |
| 2010 NY Slip Op 08653 [78 AD3d 1430] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Dakota CC., a Child Alleged to be Neglected. ChemungCounty Department of Social Services, Respondent; Arthur CC.,Appellant. |
—[*1] David A. Kagle, Chemung County Department of Social Services, Elmira, for respondent. Daniel J. Cain, Elmira, attorney for the child.
Cardona, P.J. Appeal from an order of the Family Court of Chemung County (Hayden, J.),entered September 2, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondent's child to be neglected.
In 2009, petitioner commenced this neglect proceeding against respondent, alleging, among otherthings, that his alcohol abuse had resulted in improper supervision of his son, Dakota CC. (born in1996). The allegations stem, in part, from the child's positive test result for THC at the age of 12 and hisadmitted use of marihuana while in respondent's care. Following a fact-finding and dispositional hearing,Family Court entered a finding of neglect and ordered that the child be placed with petitioner. Thisappeal ensued and we affirm.
A neglected child is defined as one "whose physical, mental or emotional condition has beenimpaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent. . . to exercise a minimum degree of care . . . in providing the child withproper [*2]supervision or guardianship" (Family Ct Act § 1012[f] [i] [B]; see Nicholson v Scoppetta, 3NY3d 357, 368 [2004]). A review of the record establishes that Family Court's finding of neglectis supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]).
Here, much of the evidence of neglect was based upon the child's out-of-court statements that, dueto respondent's heavy drinking and lack of supervision, the child had complete freedom to sneak out ofthe house and acquire drugs while in respondent's care. Contrary to respondent's contention, we findthat evidence at the hearing was sufficient to corroborate the child's out-of-court statements (see Matter of Lindsey BB. [Ruth BB.], 70AD3d 1205, 1206 [2010]). Specifically, in addition to the child's positive drug test, testimony fromthe child's mother as well as petitioner's caseworker demonstrated respondent's history of alcoholabuse, which also led to petitioner indicating previous reports against respondent. Further testimonyfrom that caseworker revealed that during his investigation regarding the child's positive test results, thechild was home alone, and when respondent appeared from a neighbor's home, he was visiblyintoxicated. Other testimony also established that while in respondent's care, the child had 38unexcused absences from school and five suspensions. Moreover, testimony revealed that respondentclaimed to be unaware of the child's drug use and characterized the positive drug test results as bogus.In view of the foregoing and according deference to Family Court's credibility determinations, we find asound and substantial basis exists in the record to support the finding of neglect, and that determinationwill not be disturbed (see Matter of KarissaNN., 19 AD3d 766, 766-767 [2005]).
Finally, Family Court should not have taken judicial notice of respondent's prior criminal historywithout affording him an opportunity to challenge the relevancy or accuracy thereof, nor should thecourt have included allegations in the fact-finding decision that were not established during the hearing(see Matter of Justin EE., 153 AD2d 772, 774 [1989], lv denied 75 NY2d 704[1990]). However, these errors were harmless in light of the significant proof of neglect, as well as thecourt's recitation of its findings at the conclusion of the fact-finding hearing (see Matter of Billets v Bush, 63 AD3d1203, 1204 [2009]).
Mercure, Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, without costs.