Opinion
799 CAF 19-01842
10-01-2021
In the MATTER OF TRINITY B.-S. and Karina N. Oswego County Department of Social Services, Petitioner-Respondent; v. William R.N., Respondent-Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT-APPELLANT. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT. LAWRENCE BROWN, BRIDGEPORT, ATTORNEY FOR THE CHILDREN.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT-APPELLANT.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT.
LAWRENCE BROWN, BRIDGEPORT, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order in this Family Court Act article 10 proceeding, we reject the contention of respondent father that the evidence does not establish his neglect of the subject children by a preponderance of the evidence. Petitioner established a presumption of neglect based on the father's chronic and repeated misuse of drugs while entrusted with the care of the subject children (see Family Ct Act § 1046 [a] [iii] ; Matter of Jack S. [Franklin O.S.] , 173 A.D.3d 1842, 1843, 105 N.Y.S.3d 667 [4th Dept. 2019] ; Matter of Kenneth C. [Terri C.] , 145 A.D.3d 1612, 1613, 43 N.Y.S.3d 819 [4th Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1574355 [2017] ). Contrary to the father's contention, the presumption of neglect was not rebutted inasmuch as the evidence did not establish that he was "voluntarily and regularly participating in a recognized rehabilitative program" ( § 1046 [a] [iii] ; see Matter of Brooklyn S. [Stafania Q.—Devin S.] , 150 A.D.3d 1698, 1698-1699, 52 N.Y.S.3d 607 [4th Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051983 [2017] ). In any event, the evidence established that the children's "physical, mental or emotional condition[s] [were] impaired or [were] in imminent danger of becoming impaired" as a result of the father's failure to exercise a minimum degree of care in providing the children with proper supervision and guardianship "by misusing a drug or drugs" (§ 1012 [f] [i] [B]; see Matter of Timothy B. [Paul K.] , 138 A.D.3d 1460, 1462, 30 N.Y.S.3d 455 [4th Dept. 2016], lv denied 28 N.Y.3d 908, 2016 WL 6783120 [2016] ). Additionally, petitioner established that the children's mental or emotional condition was impaired or was in imminent danger of becoming impaired by their exposure to domestic violence (see Matter of Trinity E. [Robert E.] , 137 A.D.3d 1590, 1591, 137 A.D.3d 1590 [4th Dept. 2016] ; see generally Nicholson v. Scoppetta , 3 N.Y.3d 357, 371, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; Matter of Nevin H. [Stephanie H.] , 164 A.D.3d 1090, 1091-1092, 83 N.Y.S.3d 390 [4th Dept. 2018] ).