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In re Mark WW.

Supreme Court of New York, Third Department

February 22, 2018

In the Matter of MARK WW., Respondent,
JENNIFER B., Appellant. (Proceeding No. 1.) In the Matter of LOGAN WW. and Others, Alleged to be Neglected Children. CORTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JENNIFER B., Appellant. (Proceeding No. 2.) (And Five Other Related Proceedings.)

          Calendar Date: January 11, 2018

          Lisa K. Miller, McGraw, for appellant.

          Tracy Steeves, Kingston, for Mark WW., respondent.

          Stacy L. Banewicz, Cortland County Department of Social Services, Cortland, for Cortland County Department of Social Services, respondent.

          Natalie B. Miner, Homer, attorney for the children.

          Before: Garry, P.J., Egan Jr., Lynch, Devine and Clark, JJ.


          DEVINE, J.

         Appeals (1) from an order of the Family Court of Cortland County (Campbell, J.), entered October 20, 2016, which, among other things, granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, to modify a prior order of custody, and (2) from an order of said court, entered November 14, 2016, which granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

         Petitioner Mark WW. (hereinafter the father) and respondent (hereinafter the mother) are the parents of three children (born in 2008, 2009 and 2010). They are also no strangers to Family Court, which, pursuant to the mother's petition to modify the existing custodial arrangement, issued an order of protection in January 2015 that directed the father to stay away from the mother and have no contact with her. Family Court subsequently issued an order that modified the custody arrangement to award the mother sole legal and physical custody of the children and the father specified visitation, with the custodial exchanges to be handled via a relative. Upon the father's appeal from both orders, we affirmed (Matter of Jennifer WW. v Mark WW., 143 A.D.3d 1063, 1064 [2016]).

         In February 2016, the mother was assaulted by her boyfriend within sight and/or earshot of the children. The boyfriend resumed living with them in short order, prompting the present proceedings. In proceeding No. 1, the father sought to modify the 2015 custody order and obtain sole custody of the children. Petitioner Cortland County Department of Social Services (hereinafter DSS) then commenced proceeding No. 2 alleging neglect on the part of the mother [1]. DSS also obtained a temporary order directing the mother to remain in Cortland County except in limited circumstances, to prevent the children from having any contact with the boyfriend and to engage with a nearby domestic violence assistance program.

         Family Court conducted a fact-finding hearing and determined that the mother had neglected the children. A dispositional hearing was then conducted that included consideration of the various petitions filed by the mother and the father, including the father's custody modification petition. Following that hearing, Family Court, by order entered in October 2016, among other things, granted the father's petition to modify custody, awarded the father sole custody of the children and awarded the mother set visitation. In November 2016, Family Court issued an order of fact-finding and disposition adjudicating the children to be neglected by the mother and ordering that the mother comply with an order of protection prohibiting contact between the children and the boyfriend. The mother now appeals from both orders. [2]

         In order to establish neglect, DSS was obliged to "show, by a preponderance of the evidence, first, that [the] child[ren]'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[ren] is a consequence of the failure of the parent... to exercise a minimum degree of care in providing the child[ren] with proper supervision or guardianship" (Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004] [internal citation omitted]; see Matter of Kieran XX. [Kayla ZZ.], 154 A.D.3d 1094, 1095 [2017]). To "determin[e] whether a parent or guardian has failed to exercise a minimum degree of care, the relevant inquiry is whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances" (Matter of Cori XX. [Michael XX.], 145 A.D.3d 1207, 1208 [2016] [internal quotation marks and citations omitted]; see Matter of Jade F. [Ashley H.], 149 A.D.3d 1180, 1181 [2017]).

         The children saw or overheard an incident at the family residence in February 2016 in which the boyfriend beat the mother with enough force to bloody her, knocked out three of her teeth and smashed a television and a window with a space heater. Family Court credited testimony, disputed by the mother, that the children were afraid of the boyfriend after this episode and did not want any contact with him. DSS did not, however, impermissibly base its claims of neglect upon this single instance of the children witnessing domestic abuse against the mother (see Nicholson v Scoppetta, 3 N.Y.3d at 368; Matter of Anthony FF. [Lisa GG.], 105 A.D.3d 1273, 1274 [2013]). The February 2016 incident was only the latest reason for concern about the boyfriend and his behavior around children, beginning with a 2011 indicated child protective report and criminal charges relating to his infliction of excessive corporal punishment upon an ex-girlfriend's child. The boyfriend had harassed and threatened others in front of children during his relationship with the mother, including incidents in which he threatened to kill a neighbor and menaced another parent at the children's school. His relationship with the mother was also tempestuous, with law enforcement repeatedly called to the family residence to deal with domestic disputes from 2014 onward.

         Notwithstanding this persistent and ominous conduct by the boyfriend, when the order of protection issued in the wake of the February 2016 incident was modified to allow contact between him and the mother, she permitted him to move back into the family residence without concern for the effect that might have upon the children [3]. Indeed, far from grappling with the problematic behaviors of the boyfriend and the mother's problematic desire to remain with him, the mother declined offered preventive services and explored moving with the boyfriend to another state so that they could evade the terms of the order of protection altogether. The mother presented some conflicting proof but, according deference to Family Court's assessment of credibility, the foregoing provides ample ...

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