| Matter of Cody W. (Ronald L.) |
| 2017 NY Slip Op 01871 [148 AD3d 914] |
| March 15, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Cody W. Suffolk County Department of SocialServices, Respondent; Ronald L., Appellant. (Proceeding No. 1.) In the Matter of Ronell L.L.Suffolk County Department of Social Services, Respondent; Ronald L., Appellant. (ProceedingNo. 2.) In the Matter of Roniyah L.L. Suffolk County Department of Social Services,Respondent; Ronald L., Appellant. (Proceeding No. 3.) |
Del Atwell, East Hampton, NY, for appellant.
Dennis M. Brown, County Attorney, Central Islip, NY (Randall J. Ratje of counel), forrespondent.
Michael E. Repole, Smithtown, NY, attorney for the child Cody W.
Theresa A. Mari, Hauppauge, NY, attorney for the children Ronell L. L. and Roniyah L.L.
Appeals by the father from two orders of fact-finding and disposition and two orders ofprotection of the Family Court, Suffolk County (Richard Hoffman, J.), all dated November 5,2015. The orders of fact-finding and disposition, insofar as appealed from, after a hearing,determined that the father neglected the subject children and, among other things, placed thechild Cody W. in the custody of the Suffolk County Department of Social Services until thecompletion of the next permanency hearing and released the children Ronell L.L. and RoniyahL.L. to their mother under the supervision of the Suffolk County Department of Social Servicesfor a period of one year. The orders of protection, one issued on behalf of the child Cody W. andthe other issued on behalf of the children Ronell L.L. and Roniyah L.L., ordered the father torefrain from using illicit drugs and alcohol, to refrain from misusing prescription drugs, and torefrain from any acts of domestic violence and physical violence for a period of oneyear.
[*2] Ordered that the appeals from so much ofthe first order of fact-finding and disposition as placed the child Cody W. in the custody of theSuffolk County Department of Social Services until the completion of the next permanencyhearing, and so much of the second order of fact-finding and disposition as released the childrenRonell L.L and Roniyah L.L. to their mother under the supervision of the Suffolk CountyDepartment of Social Services for a period of one year are dismissed as academic, without costsor disbursements; and it is further,
Ordered that the orders of fact-finding and disposition are affirmed insofar as reviewed,without costs or disbursements; and it is further,
Ordered that the orders of protection are affirmed, without costs or disbursements.
The appeals from so much of the first order of fact-finding and disposition as placed thesubject child Cody W. in the custody of the Suffolk County Department of Social Services untilthe completion of the next permanency hearing, and so much of the second order of fact-findingand disposition as released the subject children Ronell L.L and Roniyah L.L. to their motherunder the supervision of the Suffolk County Department of Social Services for a period of oneyear must be dismissed as academic, as the periods of placement and release, respectively, haveexpired (see Matter of Tayleese M.C.[Tunisha H.], 127 AD3d 1077, 1077 [2015]; Matter of Kaleb B. [Harold S.], 119 AD3d 780, 780 [2014]). Theadjudication of neglect, however, constitutes a permanent and significant stigma which mightindirectly affect the status of the father in potential future proceedings, and, thus, the appealsfrom so much of the two orders of fact-finding and disposition as determined that the childrenwere neglected are not academic (see Matter of Kaleb B. [Harold S.], 119 AD3d at780-781).
Although the orders of protection have expired by their own terms, the appeals from theorders of protection have not been rendered academic "given the totality of the enduring legal andreputational consequences" of the orders of protection (Matter of Veronica P. v Radcliff A., 24 NY3d 668, 673[2015]).
In order to establish neglect of a child, the petitioner must demonstrate, by a preponderanceof the evidence, (1) that the child's physical, mental, or emotional condition has been impaired oris in imminent danger of becoming impaired, and (2) that the actual or threatened harm to thechild is a consequence of the failure of the parent or caretaker to exercise a minimum degree ofcare in providing the child with proper supervision or guardianship (see Family Ct Act§§ 1012 [f] [i]; 1046 [b]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). To satisfy thisstandard, the petitioner may rely upon prior out-of-court statements of the subject children,provided that they are properly corroborated (see Family Ct Act § 1046 [a][vi]; Matter of Nicole V., 71 NY2d 112, 117-118 [1987]; Matter of Mateo S. [Robin Marie Y.],118 AD3d 891, 892 [2014]). The Family Court has considerable discretion in decidingwhether out-of-court statements made by children have been reliably corroborated and whetherthe record as a whole supports a finding of abuse or neglect (see Matter of Nicole V., 71NY2d at 119; Matter of Alexander M.[Benjamin M.], 88 AD3d 794, 795 [2011]).
Here, contrary to the father's contention, a preponderance of the evidence supports the FamilyCourt's finding that the father neglected the subject children by misusing marijuana and bycommitting an act of domestic violence in their presence. The record demonstrated that the fatherwas previously adjudicated to have neglected the children based on substance abuse and that thefather submitted to a toxicology screening and tested positive for marijuana. This evidence wassufficient to corroborate the out-of-court statements of the children Cody W. and Ronell L.L.,which established that the father smoked "weed" about once per week in the presence of CodyW. and Ronell L.L. and, on one occasion the child Cody W., then 7 years old, found remnants ofthe father's marijuana in an ashtray and tried to smoke it (see Matter of Era O. [Emmanuel O.], 145 AD3d 895 [2016]; Matter of Paul J., 6 AD3d 709,710 [2004]; cf. Matter of AnastasiaL.-D. [Ronald D.], 113 AD3d 685, 687 [2014]). The evidence further demonstrated thatthe father neglected the children by committing domestic violence in the presence of the childrenRoniyah L.L. and Ronell L.L. (seeMatter of Mohammed J. [Mohammed Z.], 121 AD3d 994, 995 [2014]; Matter of Niyah E. [Edwin E.], 71AD3d 532 [2010]; Matter ofAndrew S., 43 AD3d 1170, 1171 [2007]; Matter of Cybill V., 279 AD2d 582,582-583 [2001]; Matter of Jeremiah M., 290 AD2d 450 [2002]; cf. Matter of DaphneG., 308 AD2d 132, 135 [2003]). Specifically, during an argument with the children's mother,the father threw a stone object into the mother's car windshield, shattering the glass. The childrenRoniyah L.L., then three years old, and Ronell L.L., then five years old, were present andstanding between the father and the mother at the time of the incident.
The father's remaining contentions are without merit. Dillon, J.P., Cohen, Duffy andConnolly, JJ., concur.