In re Sadiq H.
| Decision Date | 01 February 2011 |
| Citation | 915 N.Y.S.2d 867,81 A.D.3d 647 |
| Parties | In the Matter of SADIQ H. (Anonymous). Administration for Children's Services, petitioner-respondent; Karl H. (Anonymous), appellant, et al., respondent. |
| Court | New York Supreme Court — Appellate Division |
Larry S. Bachner, Jamaica, N.Y., for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Sharyn Rootenberg of counsel; Daniel Milstein on the brief), for respondent.
Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan Clement of counsel), attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals (1) from a fact-finding order of the Family Court, Queens County (Tally, J.), dated December 4, 2008, which, after a hearing, found that he neglected the subject child, and (2), as limited by his brief, from so much of an order of disposition of the same court dated March 18,2010, as, upon the fact-finding order, placed the child in the custody of the Commissioner of Social Services of Queens County until the completion of the next permanency hearing.
ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,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 insofar as appealed from, 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 ( see Family Ct. Act § 1012[f] [i][B], § 1046[a][iii], [b][i]; Matter of Ayana Jean L., 23 A.D.3d 472, 473, 808 N.Y.S.2d 104; Matter of Sade W., 286 A.D.2d 770, 771, 730 N.Y.S.2d 721; see also Matter of Arthur S. [ Rose S.], 68 A.D.3d 1123, 1123-1124, 891 N.Y.S.2d 457). Where, as here, the Family Court is confronted primarily with issues of credibility, its factual findings are entitled to considerable deference on appeal, unless clearly unsupported by the record ( see Matter of Andrew B. [ Deborah B.], 73 A.D.3d 1036, 1036, 900 N.Y.S.2d 661; Matter of Justin J., 25 A.D.3d 1031, 1033, 808 N.Y.S.2d 497; see also Matter of Angelyna G., 46 A.D.3d 304, 304, 847 N.Y.S.2d 89). The testimony adduced at the fact-finding hearing established that the father regularly used crack cocaine, at times in the presence of the subject child. By submitting proof of the father's repeated misuse of drugs, the petitioner established a prima facie case of neglect pursuant to Family Court Act § 1046(a)(iii) ( see Matter of Nikita A., 16 A.D.3d 736, 737, 790 N.Y.S.2d 330; cf. Matter of Anastasia G., 52 A.D.3d 830, 832, 861 N.Y.S.2d 126) and, therefore, "neither actual impairment [of the child's physical, mental, or emotional condition] nor specific risk of impairment need be established" ( Matter of Paolo W., 56 A.D.3d 966, 967, 867 N.Y.S.2d 753 [internal quotation marks omitted]; see Matter of Stefanel Tyesha C., 157 A.D.2d 322, 328, 556 N.Y.S.2d 280).
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