| Matter of Nasiim W. (Keala M.) |
| 2011 NY Slip Op 06934 [88 AD3d 452] |
| October 4, 2011 |
| Appellate Division, First Department |
| In the Matter of Nasiim W., a Child Alleged to be Neglected. KealaM., Appellant; Administration for Children's Services, Respondent. |
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Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel),Attorney for the Child.
Order of fact-finding and disposition, Family Court, New York County (Rhoda J. Cohen, J.),entered on or about September 16, 2010, which, upon a fact-finding determination thatrespondent mother neglected her biological son, Nasiim W., released the child to his biologicalfather, without supervision, unanimously affirmed, without costs.
Petitioner agency satisfied its burden of proving, by a preponderance of the evidence, thatrespondent neglected her child (see Family Ct Act § 1012 [f] [i] [B]; § 1046[a] [iii]). The agency's witnesses personally observed respondent under the influence of alcoholto the extent that she was no longer in control of her actions. On one occasion she approached thechild and his stepmother at approximately 7:15 a.m., intoxicated and holding an open 24-ouncecan of beer. She screamed and cursed at the stepmother and attempted to grab the child awayfrom her. On another occasion, respondent appeared at the residence of the stepmother and thechild's father under the influence of alcohol, demanding to see the child. When she was told to goaway, she vandalized the lobby of the apartment building. On a third occasion, an agencycaseworker observed respondent at a 1:00 p.m. family conference slurring her speech, smellingof alcohol, drooling from her mouth, and, as a result, being unable to participate in theconference. Moreover, the agency's case record, which was admitted into evidence, revealed thatboth the child and his father had told caseworkers that respondent was intoxicated during hervisits with the child and that the child had reported that respondent drank alcohol from a glassbottle mixed with fruit juice.
This proof of impaired judgment and loss of self-control during respondent's repeated boutsof excessive drinking was sufficient to trigger the application of the presumption of neglectpursuant to Family Court Act § 1046 (a) (iii), which obviates the need to present proof ofthe child's physical, emotional or mental impairment or an imminent risk thereof as aconsequence of the parent's behavior (see Matter of Stefanel Tyesha C., 157 AD2d 322,328 [1990], appeal dismissed 76 NY2d 1006 [1990]; Matter of William T., 185AD2d 413 [1992]). Thus, the facts that no evidence was presented concerning the impact ofrespondent's behavior on the child and [*2]that the child was notpresent during two of the three incidents relied upon by the court are of no consequence.
Moreover, the mother failed to rebut the presumption of neglect (see Family Ct Act§ 1046 [a] [iii]). She did not testify or otherwise offer any evidence on her own behalf, shedenied any alcohol misuse and claimed that she drank alcohol "socially," and she presented noevidence that she was voluntarily and regularly participating in a recognized alcohol treatmentprogram.
While respondent claims that the testimony of the stepmother was incredible, the court hadthe opportunity to observe her testify, and its assessment of her credibility is entitled to greatdeference on appeal (see Matter of Irene O., 38 NY2d 776 [1975]).Concur—Andrias, J.P., Friedman, Renwick, Richter and Manzanet-Daniels, JJ.