Opinion
2012-07-5
In the Matter of JADA F. (Anonymous). Suffolk County Department of Social Services, respondent; Carolyn F. (Anonymous), appellant.
Del Atwell, East Hampton, N.Y., for appellant. Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Jennifer J. Haas of counsel), for respondent.
Del Atwell, East Hampton, N.Y., for appellant. Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Jennifer J. Haas of counsel), for respondent.
Thomas W. McNally, Huntington Station, N.Y., attorney for the child.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
In a child neglect proceeding pursuant to Family Court Act article 10, the mother appeals from (1) a decision of the Family Court, Suffolk County (Whelan, J.), dated May 18, 2011, and (2) an order of fact-finding and disposition of the same court also dated May 18, 2011, which, upon the decision, made after fact-finding and dispositional hearings, found that she had neglected the subject child, and, among other things, placed the child under the supervision of the Suffolk County Department of Social Services.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
To establish neglect pursuant to Family Court Act § 1012(f)(i)(B), 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] ). While domestic violence may be a permissible basis upon which to make a finding of neglect ( see Matter of Deandre T., 253 A.D.2d 497, 498, 676 N.Y.S.2d 666), “[n]ot every child exposed to domestic violence is at risk of impairment” ( Nicholson v. Scoppetta, 3 N.Y.3d at 375, 787 N.Y.S.2d 196, 820 N.E.2d 840;Matter of Ariella S. [ Krystal C.], 89 A.D.3d 1092, 1093, 934 N.Y.S.2d 422 [internal quotation marks omitted] ). A finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence ( see Nicholson v. Scoppetta, 3 N.Y.3d at 375, 787 N.Y.S.2d 196, 820 N.E.2d 840;Matter of Matter of Ariella S. [ Krystal C.], 89 A.D.3d at 1093, 934 N.Y.S.2d 422).
Here, a preponderance of the evidence established that the mother neglected the subject child by, inter alia, engaging in acts of domestic violence against her adult daughter, in the child's presence, that created an imminent danger of impairing the child's physical, mental, or emotional condition ( seeFamily Ct. Act § 1012[f][i][B]; Matter of Ariella S. [ Krystal C.], 89 A.D.3d at 1093–1094, 934 N.Y.S.2d 422;Matter of Kiara C. [ David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566).
The mother's remaining contentions are without merit.