In re Tyler MM.

• Decision Date: 10 March 2011
• Citation: 918 N.Y.S.2d 644,82 A.D.3d 1374
• Parties: In the Matter of TYLER MM. and Others, Alleged to be Neglected Children. Otsego County Department of Social Services, Respondent; Stephanie NN. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 644 82 A.D.3d 1374 In the Matter of TYLER MM. and Others, Alleged to be Neglected Children. Otsego County Department of Social Services, Respondent; Stephanie NN. et al., Appellants. Supreme Court, Appellate Division, Third Department, New York. March 10, 2011.

Christopher Hammond, Cooperstown, for Stephanie NN., appellant.

Sandra M. Colatosti, Albany, for Patrick O., appellant.

Steven Ratner, Otsego County Department of Social Services, Cooperstown, for respondent.

Susan B. Marris, Manlius, attorney for the children.

Before: MERCURE, J.P., SPAIN, ROSE, LAHTINEN and GARRY, JJ.

LAHTINEN, J.

Appeals from two orders of the Family Court of Otsego County (Lambert, J.), entered October 19, 2009 and December 24, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate the subject children to be neglected.

Respondent Stephanie NN. (hereinafter the mother) is the mother of five children, twin sons born in 1993, twin daughters born in 1995 and a son born in 2002. She is the custodial parent of the four older children. The youngest child has a different father than the other four children and his father has custody, with the mother having visitation. Respondent Patrick O., who was 19 years old at the time of the hearing and the mother's live-in paramour, is not the father of any of the children. Petitioner commenced this neglect proceeding alleging, among other things, that marihuana was routinely smoked in the home when the children were present, some of the children drank alcohol and smoked marihuana in the home, one child smoked marihuana with Patrick, and the mother allowed the teenage boyfriend of one of her daughters to sleep with the daughter in the daughter's bed on many occasions.

Following a fact-finding hearing in which conflicting proof was presented and Family Court found petitioner's proof to be credible, the court determined that respondents had neglected the children. Family Court's dispositional order placed custody of the four oldest children with the mother subject to petitioner's supervision until November 2010. In addition, the presence in the home of the youngest child, who remained in his father's custody, was restricted to daylight hours when an adult was present. The mother appeals from the fact-finding order and Patrick O. appeals from the dispositional order.

Petitioner had the burden of proving neglect by a preponderance of the evidence ( see Matter of Jesse XX. [Marilyn ZZ.], 69 A.D.3d 1240, 1242, 893 N.Y.S.2d 686 [2010]; Matter of Mary Kate VV., 59 A.D.3d 873, 875, 873 N.Y.S.2d 375 [2009], lv. denied 12 N.Y.3d 711, 2009 WL 1545546 [2009] ). It is well settled that "[t]o establishneglect, 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' " ( Matter of Kaleb U. [Heather V.-Ryan U.], 77 A.D.3d 1097, 1098, 908 N.Y.S.2d 773 [2010], quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). Where, as here, conflicting proof is presented, we accord deference to Family Court's factual findings and credibility determinations ( see Matter of Lori MM. v. Amanda NN., 75 A.D.3d 774, 775, 904 N.Y.S.2d 810 [2010]; Matter of Omavi A. [Jaimyce A.], 68 A.D.3d 1463, 1465, 891 N.Y.S.2d 525 [2009]; Matter of Brandi U., 47 A.D.3d 1103, 1104, 849 N.Y.S.2d 710 [2008] ).

We consider first the assertions by Patrick O. that Family Court erred in finding him to be a person legally responsible for the children's care and that the evidence was insufficient to establish neglect. Although Patrick O. was only a few years senior to the oldest twins, he had daily contact with the children since he had lived in the home for about a year as the mother's paramour, he was often alone with the children, and there was proof that he cooked, cleaned and helped the children prepare for school. The record contains adequate evidence to sustain Family Court's finding that Patrick O. was legally responsible for the children's care ( see Matter of Yolanda D., 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996]; Matter of Rebecca X., 18 A.D.3d 896, 898, 795 N.Y.S.2d 113 [2005], lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 801, 835 N.E.2d 661 [2005] ). The evidence regarding neglect of the children by Patrick O. was sufficient because, among other things, there was proof that he smoked marihuana with at least one of the children and we have previously held that "smoking marihuana with a child 'demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [a] respondent's care' " ( Matter of Amber VV., 19 A.D.3d 767, 768, 797 N.Y.S.2d 144 [2005], quoting Matter of Daniella HH., 236 A.D.2d 715, 716, 654 N.Y.S.2d 200 [1997] ).

Next, we turn briefly to two evidentiary issues raised in cursory arguments by the mother. First, we are unpersuaded that Family Court erred in not permitting the mother...