Opinion
2012-01-3
In re KEONI DAQUAN A., and Others, Dependent Children Under the Age of Eighteen Years, etc.,Brandon W., Respondent–Appellant,April A., Respondent,New York City Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent.
Steven N. Feinman, White Plains, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Michael D. Scherz of counsel), attorney for the child Keoni Daquan A.GONZALEZ, P.J., ANDRIAS, DeGRASSE, RICHTER, ABDUS–SALAAM, JJ.
Orders of disposition, Family Court, New York County (Susan K. Knipps, J.), entered on or about August 17, 2010 and October 18, 2010, which, to the extent appealed from as limited by the briefs, bring up for review a fact-finding determination that respondent father neglected the subject children, unanimously affirmed, without costs.
A preponderance of the evidence supports the finding that respondent neglected the children by misusing drugs and not participating in any rehabilitation program during the relevant period ( see Family Ct. Act § 1012 [f][i][B]; Matter of Jasmine B., 66 A.D.3d 420, 886 N.Y.S.2d 162 [2009] ). Respondent's testimony that he regularly smokes marijuana is prima facie evidence of neglect pursuant to Family Ct. Act § 1046(a)(iii). Respondent failed to rebut the statutory presumption of neglect with proof that he “is voluntarily and regularly participating in a recognized rehabilitative program” ( id.; see Matter of Stefanel Tyesha C., 157 A.D.2d 322, 326–327, 556 N.Y.S.2d 280 [1990], appeal dismissed 76 N.Y.2d 1006, 564 N.Y.S.2d 716, 565 N.E.2d 1267 [1990] ). Although he testified at a section 1028 hearing that he was in a drug treatment program, he did not identify the program and failed to substantiate his assertion with documentation or other evidence. Under the circumstances, petitioner agency was not required to establish the children's impairment or risk of impairment ( see Family Ct. Act § 1012[f][i] [B]; Matter of Nasiim W., 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 [2011]; Stefanel Tyesha C., 157 A.D.2d at 328, 556 N.Y.S.2d 280 [1990] ).
The record supports the finding that respondent is a “person legally responsible” for his nonbiological children's care; thus, the finding of neglect with respect to these children is sustainable (Family Ct. Act § 1012 [a],[g]; Matter of Yolanda D., 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996]; Matter of Devina S., 24 A.D.3d 188, 189, 808 N.Y.S.2d 159 [2005], lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006] ). The record shows that respondent was the long-term boyfriend of the children's mother, the biological father of the mother's other children, and a regular visitor in the mother's home. Moreover, respondent testified that he, at times, watched the children, assisted with their homework and attended their doctors' appointments. Accordingly, the record permits “an inference of substantial familiarity” between the children and respondent ( Matter of Christopher W., 299 A.D.2d 268, 751 N.Y.S.2d 2 [2002] ). There is no basis for disturbing the court's credibility determinations ( see Matter of Ilene M., 19 A.D.3d 106, 106, 796 N.Y.S.2d 87 [2005] ).