| Matter of Madison PP. (Tina QQ.) |
| 2011 NY Slip Op 07327 [88 AD3d 1102] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Madison PP., a Child Alleged to be Neglected.Clinton County Department of Social Services, Appellant-Respondent; Tina QQ.,Respondent-Appellant. (And Another Related Proceeding.) |
—[*1] Marcel J. LaJoy, Albany, for appellant-respondent. Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent-appellant. Omshanti Parnes, Plattsburgh, attorney for the child.
Rose, J. (1) Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered November 30, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's child to be neglected, and (2) cross appealsfrom an order of said court, entered December 10, 2010, which, among other things, grantedpetitioner's application, in two proceedings pursuant to Family Ct Act articles 10 and 10-A, toplace respondent's child with respondent's adult son.
Petitioner commenced neglect proceedings in August 2010 against respondent (hereinafterthe mother) and the father of their child (born in 2009). Following a fact-finding hearing, FamilyCourt determined that the child was neglected based on the mother's abuse of [*2]hydrocodone and her intoxicated condition while caring for thechild, as well as the child's repeated exposure to serious incidents of domestic violence betweenthe mother and the father. Having consented to the disposition, the mother now limits her appealto the neglect determination. Petitioner cross appeals, as limited by its brief, from that part of thedispositional order requiring it to bring a violation proceeding if the mother does not comply withtreatment recommendations.
The evidence at the fact-finding hearing revealed that the mother has a long-standing historyof prescription drug abuse that led to previous neglect findings against her with respect to twoolder children. In her own testimony, the mother conceded that she had been addicted topainkillers and, although she claimed to have been sober since October 2007, she admitted thatshe entered a detox program in June 2010 and continued to use painkillers as recently asSeptember 2010. Petitioner's caseworkers testified that the mother appeared to be intoxicatedwhen she came to petitioner's offices with the father and child in August 2010, and the results ofdrug testing on that date indicated the presence of opiates and oxycodone. By establishing themother's repeated misuse of drugs and her intoxication, petitioner provided prima facie evidencethat the child was neglected (see Family Ct Act § 1046 [a] [iii]; Matter of Chassidy CC. [Andrew CC.],84 AD3d 1448, 1449 [2011]; Matter of Nikita A., 16 AD3d 736, 737 [2005]). In response, themother failed to offer any evidence to rebut that presumption of neglect (see Matter of Paolo W., 56 AD3d966, 968 [2008], lv dismissed 12 NY3d 747 [2009]).
In addition, the evidence at the fact-finding hearing revealed that the father had engaged inrepeated acts of domestic violence against the mother and that the child's well-being wasendangered as a result. Despite the ongoing, serious nature of the violence, the mother refused toacknowledge its severity or take steps to remove the child from the situation. While admittingthat she was victimized by the father when he drank and that he drank whenever he had themoney to do so, the mother nevertheless continued to live with him, even following his releasefrom jail where he had been incarcerated after an assault upon her. Giving deference to FamilyCourt's resolution of credibility issues (see Matter of Nikita A., 16 AD3d at 737), there issound and substantial support in the record of the child's exposure to domestic violence as anadditional basis for the finding of neglect (see Matter of Armani KK. [Deborah KK.], 81 AD3d 1001, 1002[2011], lvs denied 16 NY3d 711, 712 [2011]; Matter of Xavier II., 58 AD3d 898,899-900 [2009]; Matter of James MM. v June OO., 294 AD2d 630, 632 [2002]).
Finally, the cross appeals from the dispositional order must be dismissed given the mother'sconcession to the disposition, the expiration of that order and the concurrent expiration ofpetitioner's obligation to commence a violation proceeding if the mother fails to comply withtreatment (see Matter of Olivia SS.[William TT.], 75 AD3d 800, 801 [2010]; Matter of Cadejah AA., 25 AD3d 1027, 1028-1029 [2006], lvdenied 7 NY3d 705 [2006]).
Peters, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order enteredNovember 30, 2010 is affirmed, without costs. Ordered that the cross appeals from the orderentered December 10, 2010 are dismissed, without costs.