Admin. for Children's Servs. v. Krystal C. (In re Ariella S.)

• Decision Date: 29 November 2011
• Citation: 2011 N.Y. Slip Op. 08762,89 A.D.3d 1092,934 N.Y.S.2d 422
• Parties: In the Matter of ARIELLA S. (Anonymous).Administration for Children's Services, petitioner-respondent;Krystal C. (Anonymous), appellant, et al., respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08762

89 A.D.3d 1092

934 N.Y.S.2d 422

In the Matter of ARIELLA S. (Anonymous).Administration for Children's Services, petitioner-respondent;Krystal C. (Anonymous), appellant, et al., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 29, 2011.

Ulrich Fritsche, Staten Island, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Larry A. Sonnenshein of counsel), for petitioner-respondent.

Placidus Aguwa, Jamaica, N.Y., attorney for the child.REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and SHERI S. ROMAN, JJ.

In a child neglect proceeding pursuant to Family Court Act article 10, the mother appeals (1), as limited by her brief, from so much of an order of fact-finding of the Family Court, Queens County (McGowan, J.), dated October 21, 2010, as, after a hearing, found that she had neglected the subject child, and (2) from an order of disposition of the same court dated January 20, 2011, which, inter alia, upon the order of fact-finding, and after a hearing, directed her to comply with the recommendation of the Administration for Children's Services that she complete domestic violence, parenting, individual counseling, anger management, and substance abuse programs.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

“[A] party seeking to establish neglect must show, by a preponderance of the evidence ( see Family Ct. Act § 1046[b][i] ), first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840; see Matter of Tajani B., 49 A.D.3d 874, 875, 854 N.Y.S.2d 520).

“While domestic violence may be a permissible basis upon which to make a finding of neglect, ‘[n]ot every child exposed to domestic violence is at risk of impairment.’ A finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence” ( Matter of Kiara C., 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566, quoting Nicholson v. Scoppetta, 3 N.Y.3d at 375, 787 N.Y.S.2d 196, 820 N.E.2d 840; see Matter of Briana F., 69 A.D.3d 718, 719, 892 N.Y.S.2d 526; Matter of Jordan E., 57 A.D.3d 539, 540, 869 N.Y.S.2d 162).

Here, a preponderance of the evidence established that the mother neglected the subject child by engaging in acts of domestic...