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In re Nicolette I.

Supreme Court of New York, Third Department

October 24, 2013

In the Matter of NICOLETTE I., Alleged to be a Neglected Child. SCHUYLER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; and LESLIE I., Appellant. (Proceeding No. 1.) In the Matter of JULIE YY., Respondent, and CHERYL ZZ., Respondent, and LESLIE I. et al., Appellants. (Proceeding No. 2.) In the Matter of NICOLETTE I., Alleged to be a Neglected Child. SCHUYLER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; and MICHELLE I., Appellant. (Proceeding No. 3.)

Calendar Date: September 12, 2013

Abbie Goldbas, Utica, for Leslie I, appellant.

Kristine Shaw, Ithaca, for Michelle I, appellant.

Geoffrey Rossi, Schuyler County Department of Social Services, Watkins Glen (Samuel D. Castellino, Big Flats, of counsel), for Schuyler County Department of Social Services, respondent.

Daniel J. Fitzsimmons, Watkins Glen, attorney for the child.

Before: Rose, J.P., Stein, McCarthy and Garry, JJ.


Garry, J.

Appeals (1) from two orders of the Family Court of Schuyler County (Argetsinger, J.), entered September 30, 2011 and December 23, 2011, which granted petitioner's applications, in proceeding Nos. 1 and 3 pursuant to Family Ct Act article 10, to adjudicate respondents' child to be neglected, and (2) from an order of said court, entered December 29, 2011, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subject child.

Respondent Leslie I. (hereinafter the father) and respondent Michelle I. (hereinafter the mother) are the parents of a child (born in 1998). The child lived with them in the Village of Burdett, Schuyler County until 2007, when she was placed with the paternal grandmother, respondent Cheryl ZZ., after the father consented to a finding of neglect in prior proceedings involving his mental health, abuse of drugs and alcohol, and failure to supervise the child (see generally Matter of Nicolette I., 56 A.D.3d 1080 [2008]). In October 2007, the mother and father stipulated to a custody order pursuant to Family Ct Act article 6 that required them, among other things, to re-engage with substance abuse and mental health services as a condition of regaining custody. In July 2010, the child returned to live with the father and mother pursuant to a modified order that granted sole legal and physical custody to the father and required "strict compliance" on his part with conditions related to the prior proceedings. The order noted that the mother's ongoing medical and mental health needs obliged the father to provide her with consistent care, assure medication compliance and prevent the abuse of drugs and alcohol.

In October 2010, the mother left the family home and alleged, among other things, that the father was frequently drinking alcohol to excess. In November 2010, she consented to the child's placement in foster care, and petitioner Schuyler County Department of Social Services (hereinafter DSS) commenced the first of these proceedings alleging that the father had neglected the child. DSS later commenced the third proceeding alleging that the mother had neglected the child. In the interim, the child's paternal aunt, petitioner Julie YY. (hereinafter the aunt), commenced the second proceeding seeking custody of the child. The father sought to sever the hearings in the two neglect proceedings, and Family Court denied this motion. Following a fact-finding hearing, the court granted the petitions and found the child to be neglected. The mother appeals from this order. The court then conducted a dispositional hearing and entered an order in the neglect proceedings and a final order in the custody proceeding that, among other things, granted joint legal custody pursuant to Family Ct Act article 6 to the father, mother and aunt and physical placement to the aunt. The father and mother each appeal from these orders.

Initially, Family Court's refusal to sever the hearings did not deprive the father of due process [1]. He claims that he was prejudiced by evidence admitted against the mother, in particular her prior statements regarding his alleged alcohol abuse [2]. However, the court ruled at the outset that it would consider the mother's out-of-court statements only against her and not against the father, and thereafter scrupulously abided by this distinction, repeatedly reminded the parties of its ruling, and did not rely on evidence pertaining to the mother in rendering its decision as to the father. As the two neglect proceedings clearly presented common questions of law and fact and the father failed to demonstrate any resulting prejudice, we find no abuse of the court's discretion in hearing them together (see Matter of Rita XX., 249 A.D.2d 850, 852 [1998]; Matter of Amy M., 234 A.D.2d 854, 855 [1996]).

The father next contends that Family Court's finding of neglect should be reversed as DSS failed to demonstrate by a preponderance of the evidence that he misused alcohol, was noncompliant with ordered treatment, or that these issues caused actual or imminent harm to the child [3]. A child is neglected when his or her "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent... to exercise a minimum degree of care... in providing the child with proper supervision or guardianship... by misusing a drug or drugs [or] alcoholic beverages to the extent that [the parent] loses self-control of his [or her] actions" (Family Ct Act § 1012 [f] [i] [B]). Here, Family Court took judicial notice of the prior neglect proceedings against the father that had involved, among other things, allegations of substance abuse and had led to the July 2010 order requiring "strict compliance." A DSS caseworker testified that, in November 2010, the child stated that she had found the father asleep on the kitchen floor, and was frightened as she could not waken him. The following day, the caseworker made an unannounced visit to the home. The father initially refused to answer the door, and when he did so at the child's urging, the caseworker smelled alcohol, the father admitted to drinking several beers, and his behavior was erratic and belligerent. The father acknowledged using alcohol on the day of this visit and on at least one other occasion while the child was in his custody; his testimony regarding how often this had occurred was notably contradictory and inconsistent. He further acknowledged use of marihuana during the pertinent time period, but claimed that this occurred only once, and without his knowledge as someone had mixed it with his tobacco. Both a former friend and the mother testified that the father had used alcohol and/or drugs in their presence during the subject period [4]. The father contends that the testimony of these two witnesses should not have been credited; however, the issues he raises were fully explored on cross-examination, and this Court gives deference to Family Court's resolution of credibility issues (see Matter of Dakota CC. [Arthur CC.], 78 A.D.3d 1430, 1430-1431 [2010]; Matter of Megan G., 291 A.D.2d 636, 637 [2002]).

A psychologist who conducted a court-ordered evaluation testified that the father suffered from bipolar disorder with psychotic features, as well as narcissistic elements with paranoia and described him as delusional and alcohol-dependent; he recommended psychotherapy, medication and abstention from alcohol and marihuana. A mental health counselor testified that, during the pertinent period, the father had attended all scheduled sessions, but stated that he was doing so solely because it was required by Family Court. The father reportedly spent most of his counseling time complaining about the restrictions on his use of alcohol, at times acknowledging his continued use and at other times denying it. This counselor opined that the father had made little or no progress toward his stated goals and had gained no insight into the impact of his alcohol use on himself or his family. During one session he smelled of alcohol and appeared to be intoxicated, but denied having consumed any. The father refused the recommendation for a psychiatric evaluation and told the counselor that he was not interested in taking medications. [5]

The credible testimony established that — despite the child's previous removal from the father's care for reasons that included substance abuse, as well as the conditions to which he was subject after she was returned to his custody — he repeatedly became sufficiently intoxicated to "impair[] his ability to make appropriate parental judgments... [and] to provide proper care for [her]" (Matter of Chassidy CC. [Andrew CC.], 84 A.D.3d 1448, 1449-1450 [2011]). In view of all of the evidence, we find a sound and substantial basis in the record to ...

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