Opinion
11-12-2015
In the Matter of BRILLIANCE B. (Anonymous).Suffolk County Department of Social Services, respondent;Sydell B. (Anonymous), et al., appellants. (Proceeding No. 1)In the Matter of Love M. (Anonymous).Suffolk County Department of Social Services, respondent;Sydell B. (Anonymous), et al., appellants. (Proceeding No. 2)In the Matter of Mother X. (Anonymous).Suffolk County Department of Social Services, respondent;Sydell B. (Anonymous), et al., appellants. (Proceeding No. 3)In the Matter of Viltasia B. (Anonymous).Suffolk County Department of Social Services, respondent;Sydell B. (Anonymous), et al., appellants. (Proceeding No. 4)In the Matter of Shyheim B. (Anonymous).Suffolk County Department of Social Services, respondent;Sydell B. (Anonymous), et al., appellants. (Proceeding No. 5).
Thomas W. McNally, Huntington, N.Y., for appellant Sydell B. Marina M. Martielli, East Quogue, N.Y., for appellant John M. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Gary L. Rosenthal of counsel), for respondent. Susan A. DeNatale, Bayport, N.Y., attorney for the children. CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
Thomas W. McNally, Huntington, N.Y., for appellant Sydell B.
Marina M. Martielli, East Quogue, N.Y., for appellant John M.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Gary L. Rosenthal of counsel), for respondent.
Susan A. DeNatale, Bayport, N.Y., attorney for the children.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
Opinion
Appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Theresa Whelan, J.), dated July 18, 2014. The order of fact-finding and disposition, insofar as appealed from, made after fact-finding and dispositional hearings, found that the mother and the father neglected the subject children and placed the children in the custody of the Suffolk County Commissioner of Social Services.
ORDERED that on the Court's own motion, the notices of appeal from a decision dated July 24, 2014, are deemed to be notices of appeal from the order of fact-finding and disposition dated July 18, 2014 (see CPLR 5512[a]; Matter of Jaelin L. [Kimrenee C.], 126 A.D.3d 795, 796, 5 N.Y.S.3d 246; Matter of William N. [Kimberly H.], 118 A.D.3d 703, 703–704, 987 N.Y.S.2d 406); and it is further,
ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the child Shyheim B. in the custody of the Suffolk County Commissioner of Social Services is dismissed as academic, without costs or disbursements, as Shyheim B. has reached 18 years of age; and it is further,
ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ), (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that 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 (see Family Ct. Act § 1012[f][i][B]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840).
1 Here, a preponderance of the evidence established that the mother neglected the subject children by, inter alia, engaging in certain acts of domestic violence in the children's presence that impaired, or created an imminent danger of impairing, their physical, mental, or emotional condition (see Matter of Kaleb B. [Harold S.], 119 A.D.3d 780, 781, 989 N.Y.S.2d 345; Matter of Eugene S. [Priscilla E.], 114 A.D.3d 691, 691, 979 N.Y.S.2d 834).
2 Additionally, the Family Court properly found that the father, who was legally responsible for the care of the two older children (see Family Ct. Act § 1012[g] ), and the biological father of the other children, neglected the children, as he failed to exercise the minimum degree of care to prevent the imminent danger of impairment of their mental or emotional condition (see Matter of Anthony S. [Dawn N.], 98 A.D.3d 519, 520, 949 N.Y.S.2d 194; Matter of Angelique L., 42 A.D.3d 569, 572, 840 N.Y.S.2d 811; Matter of Christopher B., 26 A.D.3d 431, 432, 809 N.Y.S.2d 202).
The Family Court also properly determined that it was in the best interests of the subject children for them to remain in the care and custody of the Suffolk County Commissioner of Social Services (see Matter of Lemar H., 23 A.D.3d 383, 384–385, 806 N.Y.S.2d 80; Matter of Giselle H., 22 A.D.3d 578, 580, 804 N.Y.S.2d 323).