Opinion
12-29-2016
In re JEREMY M., JR., and Another, Children Under the Age of Eighteen Years, etc., Roque A.M., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Dora M. Lassinger, East Rockaway, for appellant. Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Dora M. Lassinger, East Rockaway, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Order of fact-finding and disposition (one paper), Family Court, Bronx County (Joan L. Piccirillo, J.), entered on or about December 9, 2014, insofar as it determined, after a hearing, that respondent father neglected the subject children, unanimously affirmed, without costs.
The children's corroborated statements to the caseworker about the father's alcohol abuse and its effect upon them were appropriately considered as evidence supporting the finding of neglect (Family Court Act § 1046[a] [vi] ; Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). Moreover, they established by a preponderance of the evidence the presumption that the father neglected the children (Family Court Act § 1046[a][iii] ; Matter of Nasiim W. [Keala M.], 88 A.D.3d 452, 453–454, 931 N.Y.S.2d 4 [1st Dept.2011] ), obviating the need to establish the children's impairment or risk of impairment (Matter of Christina G. [Vladimir G.], 100 A.D.3d 454, 455, 957 N.Y.S.2d 1 [1st Dept.2012], lv. denied 20 N.Y.3d 859, 2013 WL 537153 [2013] ).
The father failed to rebut the statutory presumption that he neglected the children. He did not testify or present any evidence to support his statement to the caseworker that he was “voluntarily and regularly participating in a recognized rehabilitative program” (Family Court Act § 1046[a][iii] ; Matter of Nyheem E. [Jamila G.], 134 A.D.3d 517, 519, 23 N.Y.S.3d 9 [1st Dept.2015] ; Matter of Keoni Daquan A. [Brandon W.-April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 [1st Dept.2012] ; Matter of Nasiim W. [Keala M.], 88 A.D.3d at 453–454, 931 N.Y.S.2d 4 ). Because he did not testify, the court was permitted to draw the strongest inference against him that the opposing evidence permitted (Matter of Nadia S. [Ron S.], 138 A.D.3d 526, 527, 29 N.Y.S.3d 349 [1st Dept.2016] ; Matter of Michael P. [Orthensia H.], 137 A.D.3d 499, 500, 27 N.Y.S.3d 123 [1st Dept.2016] ).
MAZZARELLI, J.P., SWEENY, RICHTER, MANZANET–DANIELS, FEINMAN, JJ., concur.