| Matter of Daniel X. (Monica X.) |
| 2014 NY Slip Op 01229 [114 AD3d 1059] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Daniel X. and Another, Children Allegedto Be Neglected. Ulster County Department of Social Services, Respondent; Monica X.,Appellant. |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, forrespondent. Valerie Wacks, Olivebridge, attorney for the children.
Peters, P.J. Appeal from an order of the Family Court of Ulster County (Mizel, J.),entered January 7, 2013, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 10, to adjudicate respondent's children to be neglected.
Respondent is the mother of Victoria Y. (born in 1996) and Daniel X. (born in2001). Donald X., respondent's estranged husband, is the biological father of Daniel andthe stepfather of Victoria. Following certain events occurring primarily on May 4, 2011,petitioner commenced this neglect proceeding against respondent. After a fact-findinghearing, Family Court found that respondent's escalating, irrational, out-of-controlbehavior and repeated threats of violence placed the children in imminent danger of harmand constituted neglect. Respondent appeals.
"To establish neglect, petitioner must demonstrate, by a preponderance of theevidence, that the children's physical, mental or emotional condition was harmed or is inimminent danger of such harm as the result of the parent's failure to exercise a minimumdegree of care" (Matter ofJoseph RR. [Lynn TT.], 86 AD3d 723, 724 [2011] [internal quotation marksand citations omitted]; seeMatter of Alexander G. [Tatiana G.], 93 AD3d 904, 905 [2012]). "[A] findingof neglect does not require actual injury or impairment, 'but only an imminent threat thatsuch injury or impairment may result,' " which can be established through a singleincident or circumstance (Matter of Joseph RR. [Lynn TT.], 86 AD3d at 724,quoting Matter of ShalyseWW., 63 AD3d 1193, 1195-1196 [2009], lv denied 13 NY3d 704[2009]; see Matter of Xavier II., 58 AD3d 898, 899 [2009]). Furthermore,whether a parent is exercising a minimum degree of care requires an objective evaluationof the parent's behavior, in light of whether a reasonable and prudent parent would haveso acted, or failed to act, under the circumstances (see Matter of Alexander G.[Tatiana G.], 93 AD3d at 905; Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120,1122 [2011]; Matter of MitchellWW. [Andrew WW.], 74 AD3d 1409, 1412 [2010]).
We find adequate record support for Family Court's finding of neglect. Testimonyregarding the events on May 4, 2011 revealed that a neighbor stopped by respondent'shome in the afternoon, during which time respondent, among other things, madedisparaging and vulgar comments about Victoria, accused Victoria of sleeping withDonald X. and described her plan to go to the store later that day to purchase a gun toshoot Victoria and Donald X. Although Victoria was not home at the time, Daniel was,and the neighbor testified that it was her impression that he overheard what respondentwas saying. Shortly thereafter, when Donald X. called to make sure that Daniel was readyto be picked up, respondent became increasingly aggravated and angry, screamingobscenities into the telephone and telling Daniel that she would put a bullet in DonaldX.'s head if Daniel let him into the house. She also threatened to put Daniel's "headthrough the wall" if he talked back to her.
Respondent's aberrant behavior continued and culminated in an altercation withVictoria that evening when she broke down Victoria's bedroom door and doorframe—which nearly landed on Victoria—then hit Victoria with a laptopcomputer and threatened to kill her, prompting Victoria to call another neighbor for help.According to that neighbor, when she arrived at the residence, she saw that the door hadbeen broken down and witnessed respondent call Victoria vulgar names and spewmurderous threats at her. Such behavior continued after respondent called Victoria'sbiological father, screaming that if he did not come get Victoria, the child would befound in a body bag. Frightened as to what had transpired, Victoria was cryinghysterically and unable to speak while she lay curled in the fetal position on her bed.
Testimony further established that this incident was the culmination of escalatingviolent and abusive behavior by respondent toward the children following Donald X.'sdeparture from the marital residence approximately six months earlier. Victoria testifiedthat, on various occasions, respondent engaged in middle-of-the night tirades, waking herup, calling her vile names and accusing her of having a sexual relationship with DonaldX. Furthermore, respondent, who had a history of mental illness and prescription drugabuse, would take prescribed medication that would negatively effect her mood, causingher to "stomp" around the house, clench her teeth and yell. Respondent repeatedlythreatened abuse toward the children and Donald X., which frightened and concerned thechildren. Taken as a whole, the foregoing evidence provides a sound and substantialbasis to support Family Court's finding of neglect (see Matter of Joseph RR. [LynnTT.], 86 AD3d at 724-725; Matter of Paige AA. [Anthony AA.], 85 AD3d 1213, 1216[2011], lv denied 17 NY3d 708 [2011]; Matter of Justin O., 28 AD3d 877, 878-879 [2006]; Matter of Michael WW., 20AD3d 609, 611-612 [2005]; Matter of Richard T., 12 AD3d 986, 987-988 [2004]).[*2]
Lahtinen, Stein and Egan Jr., JJ., concur. Orderedthat the order is affirmed, without costs.