In re Kaleb U.

• Decision Date: 21 October 2010
• Citation: 77 A.D.3d 1097,908 N.Y.S.2d 773
• Parties: In the Matter of KALEB U., Alleged to be a Neglected Child. Columbia County Department of Social Services, Respondent; Heather V., Appellant, et al., Respondent. Ryan U., Respondent.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 773

77 A.D.3d 1097

In the Matter of KALEB U., Alleged to be a Neglected Child. Columbia County Department of Social Services, Respondent; Heather V., Appellant, et al., Respondent. Ryan U., Respondent.

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

Oct. 21, 2010.

Paul J. Connolly, Delmar, for appellant.

Megan Mercy, Columbia County Department of Social Services, Hudson (James Carlucci of counsel), for Columbia County Department of Social Services, respondent.

Cliff Gordon, Monticello, for Ryan U., respondent.

Sheila Hurley, Catskill, attorney for the child.

Before: SPAIN, J.P., ROSE, KAVANAGH, McCARTHY and EGAN JR., JJ.

SPAIN, J.P.

Appeal from an order and an amended order of the Family Court of Columbia County (Nichols, J.), entered October 21, 2009 and November 19, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate the subject child to be neglected.

Respondent Heather V. (hereinafter the mother) and Ryan U. (hereinafter the father) are the unmarried parents of a son (born in 2003) (hereinafter the child). The child was diagnosed with leukemia in June 2008. Pursuant to a custody order, made on consent in Columbia County, the parents shared joint legal and physical custody. The father resides with his girlfriend in Columbia County and the mother lives in Dutchess County with her fiancé, respondent Shaun RR. (hereinafter the fiancé), her elder son and the fiancé's daughter.

In May 2009, petitioner commenced this proceeding against the mother and the fiancé alleging, among other things, that they had alcohol abuse problems which resulted in violent altercations between them while the child was in their care. At the initial hearing on the neglect petition, at which the father appeared with counsel, Family Court issued a temporary order of protection that also granted the father temporary custody ofthe child with supervised visitation to the mother.¹ After the fact-finding hearing, Family Court found that the mother and the fiancé had neglected the child, in that they had abused alcohol and engaged in acts of violence in the presence of and close proximity to thechild, causing risk to his health and safety. At the conclusion of the subsequent dispositional hearing, the court ordered that the mother and the fiancé be placed under the supervision of petitioner, that the child be placed in the custody of the father ( see Family Ct. Act § 1055) and, in an order of protection, that the mother's access to the child be supervised for 12 months. The mother now appeals.²

In this Family Ct. Act article 10 proceeding, petitioner bears the burden of proving neglect by a preponderance of the evidence ( see Family Ct. Act § 1046[b][i] ). To establish neglect, petitioner was required to show "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 [2004]; see Family Ct. Act § 1012[f][i][B]; Matter of Shiree G. [Robert E.], 74 A.D.3d 1416, 1417, 902 N.Y.S.2d 703 [2010] ). Imminent danger "must be near or impending, not merely possible"; thus, petitioner must show "serious harm or potential harm to the child, not just ... what might be deemed undesirable parental behavior" ( Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840; see Matter of Anthony Y. [Kelly AA.-Paul AA.], 72 A.D.3d 1419, 1421, 899 N.Y.S.2d 476 [2010]; Matter of John O., 42 A.D.3d 687, 687, 839 N.Y.S.2d 605 [2007] ). "As to the second element of neglect, parental behavior must be evaluated objectively by using the reasonable and prudent parent standard" ( Matter of Richard T., 12 A.D.3d 986, 987, 785 N.Y.S.2d 169 [2004] [citation omitted]; see Matter of Anthony Y. [Kelly AA.-Paul AA.], 72 A.D.3d at 1421, 899 N.Y.S.2d 476), and Family Court's findings of fact are accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record ( see Matter of Karissa NN., 19 A.D.3d 766, 766, 796 N.Y.S.2d 442 [2006] ).

The record fully supports Family Court's conclusion that the mother's actions created an unreasonable risk of imminent danger to the child's health and safety and that the mother failed to exercise a minimum degree of care with respect to the child. The testimony of the mother's teenaged nieces, which the court found to be credible, established that, on the evening of March 2, 2009, the mother became intoxicated and engaged in bizarre behavior in a moving vehicle by hanging out the front passenger window, singing and yelling at cars and smacking the fiancé "really hard" in the face when he tried to pull her back in the vehicle. The child was present in the back seat. Their testimony also demonstrated that the child was upset by the mother's dangerous behavior and that, later that night, the intoxicated mother punched the fiancé in the course of an argument causing him to suffer a bloody nose and a black eye. Although the child did not directly witness this incident, the testimony supports the conclusion that he was aware of it and was frightened. Petitioner also presented evidence that the mother and the fiancé had engaged in argumentative and violent behavior-choking each other-on another occasion when the child was present and the child hadattempted to intervene, telling the fiancé to "[l]et go of my mommy." That testimony was amply corroborated by the child's out-of-court statements to a child protective caseworker which were properly received as substantive evidence of the mother's aggressive behavior, often after her consumption of alcohol, and of her tumultuous relationship with the fiancé ( see Family Ct. Act § 1046[a][vi]; Matter of Kole HH., 61 A.D.3d 1049, 1051, 876 N.Y.S.2d 199 [2009], lv. dismissed 12 N.Y.3d 898, 884 N.Y.S.2d 679, 912 N.E.2d 1058 [2009] ). Viewing the mother's pattern of behavior objectively, there is a sound and substantial basis for Family Court's neglect finding against her ( see Matter of Michael WW., 20 A.D.3d 609, 611-612, 798 N.Y.S.2d 222 [2005]; Matter of Karissa NN., 19 A.D.3d at 767, 796 N.Y.S.2d 442; Matter of Tami G., 209 A.D.2d 869, 870, 619 N.Y.S.2d 222 [1994], lv. denied 85 N.Y.2d 804, 626 N.Y.S.2d 755, 650 N.E.2d 414 [1995]; compare Matter of Alyssa OO. [Andrew PP.], 68 A.D.3d 1158, 1160-1161, 889 N.Y.S.2d 752 [2009]; Matter of Shannon ZZ., 8 A.D.3d 699, 701, 778 N.Y.S.2d 205 [2004]; Matter of Jerrica J., 2 A.D.3d 1161, 1163, 770 N.Y.S.2d 171 [2003] ). Significantly, throughout the period during which these incidents occurred, the child's health was already compromised, a special vulnerability to be taken into account in the assessment of the requisite minimum degree of care ( see Nicholson v. Scoppetta, 3 N.Y.3d at 370-371, 787 N.Y.S.2d 196, 820 N.E.2d 840; Matter of Sayeh R., 91 N.Y.2d 306, 315, 670...