In re Alexandria S.

• Decision Date: 10 April 2013
• Citation: 105 A.D.3d 856,962 N.Y.S.2d 675,2013 N.Y. Slip Op. 02405
• Parties: In the Matter of ALEXANDRIA S. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Alexander S. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Dylan S. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Alexander S. (Anonymous), appellant, et al., respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 856

962 N.Y.S.2d 675

2013 N.Y. Slip Op. 02405

In the Matter of ALEXANDRIA S. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Alexander S. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Dylan S. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Alexander S. (Anonymous), appellant, et al., respondent. (Proceeding No. 2).

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

April 10, 2013.

Mark Diamond, New York, N.Y., for appellant.

David L. Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for petitioner-respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In two related child protective proceedings pursuant to Family Court Act article 10, the father appeals from an order of fact-finding and disposition of the Family Court, Orange County (Currier–Woods, J.), entered May 16, 2011, which, after a hearing, inter alia, found that he neglected Alexandria S. and Dylan S.

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

Contrary to the father's contention, the Family Court's finding of neglect is supported by a preponderance of the evidence ( seeFamily Ct. Act §§ 1012[f] [i][B]; 1046[a][iii]; [b][i]; Matter of Sadiq H. [Karl H.], 81 A.D.3d 647, 915 N.Y.S.2d 867;Matter of Arthur S. [Rose S.], 68 A.D.3d 1123, 1123–1124, 891 N.Y.S.2d 457). The evidence presented at the fact-finding hearing was sufficient to show that the father neglected the subject children by engaging in certain acts of domestic violence against the mother in their presence that impaired, or created an imminent danger of impairing, their physical, emotional, or mental conditions ( see Matter of Ariella S. [Krystal C.], 89 A.D.3d 1092, 1093, 934 N.Y.S.2d 422;Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566;Matter of Jordan E., 57 A.D.3d 539, 540, 869 N.Y.S.2d 162). Additional evidence established that the father had engaged in a pattern of intimidation against the mother ( see Matter of Kiara C. [David C.], 85 A.D.3d at 1026, 926 N.Y.S.2d 566).

In addition, by submitting proof of the father's repeated use of cocaine, the petitioner established a prima facie case of neglect pursuant to Family Court Act § 1046(a)(iii) ( see Matter of Sadiq H. [Karl H.], 81 A.D.3d at 647, 915 N.Y.S.2d 867;Matter of Arthur S. [Rose S.], 68 A.D.3d at 1123, 891 N.Y.S.2d 457;Matter of Keira O., 44 A.D.3d 668, 670, 844 N.Y.S.2d 344). In this regard, “ ‘neither actual impairment [of the child's physical, mental, or emotional condition] nor specific risk of impairment need be established’ ” (Matter of Sadiq H. [Karl H.], 81 A.D.3d at 647, 915 N.Y.S.2d 867, quoting Matter of Paolo W., 56 A.D.3d 966, 967, 867 N.Y.S.2d 753 [some internal quotation marks omitted] ). The father, who did not testify, did not rebut this presumption. Notably, such a presumption “is not rebutted by a showing that ‘the children were never in danger and were...