| Matter of Keoni Daquan A. (Brandon W.—April A.) |
| 2012 NY Slip Op 00006 [91 AD3d 414] |
| Jnury 3, 2012 |
| Appellate Division, First Department |
| In the Matter of Keoni Daquan A. and Others, Children Alleged tobe Neglected. Brandon W., Appellant; April A., Respondent; New York City Administration forChildren's Services, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), forrespondent. Karen Freedman, Lawyers for Children, Inc., New York (Michael D. Scherz of counsel),attorney for the child Keoni Daquan A.
Orders of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on orabout August 17, 2010 and October 18, 2010, which, to the extent appealed from as limited bythe briefs, bring up for review a fact-finding determination that respondent father neglected thesubject children, unanimously affirmed, without costs.
A preponderance of the evidence supports the finding that respondent neglected the childrenby misusing drugs and not participating in any rehabilitation program during the relevant period(see Family Ct Act § 1012 [f] [i] [B]; Matter of Jasmine B., 66 AD3d 420 [2009]). Respondent'stestimony that he regularly smokes marijuana is prima facie evidence of neglect pursuant toFamily Ct Act § 1046 (a) (iii). Respondent failed to rebut the statutory presumption ofneglect with proof that he "is voluntarily and regularly participating in a recognized rehabilitativeprogram" (id.; see Matter of Stefanel Tyesha C., 157 AD2d 322, 326-327 [1990],appeal dismissed 76 NY2d 1006 [1990]). Although he testified at a section 1028 hearingthat he was in a drug treatment program, he did not identify the program and failed tosubstantiate his assertion with documentation or other evidence. Under the circumstances,petitioner agency was not required to establish the children's impairment or risk of impairment(see Family Ct Act § 1012 [f] [i] [B]; Matter of Nasiim W. [Keala M.], 88 AD3d 452, 453 [2011];Stefanel [*2]Tyesha C., 157 AD2d at 328).
The record supports the finding that respondent is a "person legally responsible" for hisnonbiological children's care; thus, the finding of neglect with respect to these children issustainable (Family Ct Act § 1012 [a], [g]; Matter of Yolanda D., 88 NY2d 790,796 [1996]; Matter of Devina S., 24AD3d 188, 189 [2005], lv denied 6 NY3d 715 [2006]). The record shows thatrespondent was the long-term boyfriend of the children's mother, the biological father of themother's other children, and a regular visitor in the mother's home. Moreover, respondenttestified that he, at times, watched the children, assisted with their homework and attended theirdoctors' appointments. Accordingly, the record permits "an inference of substantial familiarity"between the children and respondent (Matter of Christopher W., 299 AD2d 268 [2002]).There is no basis for disturbing the court's credibility determinations (see Matter of Ilene M., 19 AD3d106, 106 [2005]). Concur—Gonzalez, P.J., Andrias, DeGrasse, Richter andAbdus-Salaam, JJ.