Opinion
2013-03-6
In the Matter of NATALIE T. (Anonymous). Administration for Children's Services, petitioner-respondent; Roger T. (Anonymous), appellant, et al., respondent. (Proceeding No. 1). In the Matter of Nyisha T. (Anonymous). Administration for Children's Services, petitioner-respondent; Roger T. (Anonymous), appellant, et al., respondent. (Proceeding No. 2).
Catherine S. Bridge, Staten Island, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for petitioner-respondent.
Catherine S. Bridge, Staten Island, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for petitioner-respondent.
Sedrick G. Malcolm, New York, N.Y., attorney for the children.
In two child protective proceedings pursuant to Family Court Act article 10, the father appeals from so much of an order of fact-finding of the Family Court, Kings County (Beckoff, J.), dated December 14, 2011, as, after a hearing, found that he neglected the subject children.
ORDERED that the order of fact-finding is affirmed insofar as appealed from, without costs or disbursements.
To establish neglect, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship ( see Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;see also Family Ct. Act § 1046 [b][i] ). The credibility determinations of the Family Court, which has the advantage of seeing and hearing the witnesses, are entitled to considerable deference on appeal ( see Matter of Joseph O'D., 102 A.D.3d 874, 958 N.Y.S.2d 731;Matter of Todd D., 9 A.D.3d 462, 463, 780 N.Y.S.2d 180;Matter of C. Children, 249 A.D.2d 540, 541, 672 N.Y.S.2d 134). Under the facts of this case, including the negative inference which the Family Court was entitled to draw against the father upon his failure to testify at the fact-finding hearing ( see Matter of Delehia J. [ Tameka J.], 93 A.D.3d 668, 939 N.Y.S.2d 570;Matter of Christiana C. [ Carleton C.], 86 A.D.3d 606, 607, 928 N.Y.S.2d 50), the evidence was sufficient to support the Family Court's finding of neglect against the father ( see Matter of Alanah M. [ Donnie M.], 96 A.D.3d 757, 945 N.Y.S.2d 760;Matter of Hannah A. [ Jibrine A.], 84 A.D.3d 951, 952, 921 N.Y.S.2d 895; Matter of Elijah J. [ Phillip J.], 77 A.D.3d 835, 909 N.Y.S.2d 375).