Matter of Emmett RR. ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 519601
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In the Matter of EMMETT RR.
and Another, Alleged to be
Neglected Children.
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
SCOTT RR.,
Appellant.
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Calendar Date: October 20, 2015
Before: Peters, P.J., Lahtinen, Garry and Clark, JJ.
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Marshall Nadan, Kingston, for appellant.
Jesse D. Mernin, Ulster County Department of Social
Services, Kingston, for respondent.
Tracey Brown, Delmar, attorney for the children.
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Garry, J.
Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered August 11, 2014, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 10, to adjudicate respondent's children to be
neglected.
Respondent is the father of two children, a son (born in
2001) and a daughter (born in 2005). On a morning in January
2014, respondent drove his son to the bus stop. After dropping
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off the son, he proceeded to drive his daughter to school. At
approximately 8:00 a.m., while conducting an unrelated traffic
stop, State Trooper William D'Alessandro was notified by two
passing motorists that a gray Jeep that was traveling in front of
them was "all over the road." Looking down the road,
D'Alessandro observed respondent's vehicle – matching the
motorists' description – swerve into the oncoming lane of travel
in front of an approaching dump truck. After initiating a
traffic stop and speaking with respondent, D'Alessandro detected
the odor of alcohol emanating from inside the vehicle and
observed the daughter in the front seat. He called for a backup
officer and then administered four field sobriety tests, all of
which respondent failed. Respondent advised D'Alessandro that he
had consumed three or four beers the previous night.
Approximately an hour and a half after the initiation of the
stop, a second state trooper arrived on the scene to take over
the investigation. D'Alessandro issued four tickets to
respondent for various traffic infractions, but he was not
ultimately arrested or ticketed for any alcohol-related
infractions.1
Later that day, caseworkers for petitioner interviewed
respondent and the two children and obtained a temporary order of
protection upon respondent's consent requiring, among other
things, that respondent not possess or consume alcohol prior to
or during his custodial time with the children. Petitioner
thereafter commenced this proceeding seeking a determination that
respondent had neglected the children. Following a fact-finding
hearing, Family Court adjudicated the children to be neglected
and entered a temporary order of disposition pending the outcome
of related custody and visitation proceedings. Respondent
appeals.
To support a finding of neglect, petitioner was required to
demonstrate by a preponderance of the evidence that the
children's "physical, mental or emotional condition has been
1
The second trooper did not testify at the hearing and the
results of a breathalyzer test apparently administered by the
second trooper were not introduced into evidence.
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impaired or is in imminent danger of becoming impaired as a
result of the failure of his [or her] parent or other person
legally responsible for [the child's] care to exercise a minimum
degree of care" (Family Ct Act § 1012 [f] [i]; see Matter of
Javan W. [Aba W.], 124 AD3d 1091, 1091 [2015], lv denied 26 NY3d
905 [2015]). A finding of neglect may be based upon a showing
that a child was placed in an imminent risk of harm that is "near
or impending, not merely possible" (Nicholson v Scoppetta, 3 NY3d
357, 369 [2004]), and a single such incident may be sufficient to
constitute neglect (see Matter of Heaven H. [Linda H.], 121 AD3d
1199, 1199 [2014]). When determining whether a parent or
guardian has failed to exercise a minimum degree of care, the
relevant inquiry is "whether a reasonable and prudent parent
would have so acted, or failed to act, under the circumstances"
(Matter of Afton C. [James C.], 17 NY3d 1, 9 [2011] [internal
quotation marks, brackets and citation omitted]).
Here, we reject respondent's contention that the evidence
was inadequate. The evidence before Family Court included
D'Alessandro's testimony that he observed respondent swerve into
the oncoming lane into the path of a dump truck, that he detected
the odor of alcohol inside respondent's vehicle, and that
respondent admitted that "he had three to four beers the night
before." D'Alessandro also testified that respondent failed four
field sobriety tests and that, based upon his observations of
respondent, he believed that respondent was impaired by alcohol.
Additionally, two caseworkers for petitioner testified about
their interviews with the children, in which they confirmed that
respondent had been driving erratically and in a manner that had
scared them. One of the caseworkers also testified that
respondent acknowledged that he had been drinking beer after
midnight in the early morning hours and that he had been up late
working. Respondent's failure to testify at the hearing allowed
Family Court to draw the strongest possible inference against him
that the evidence would allow (see Matter of Nassau County Dept.
of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; Matter of
Heyden Y. [Miranda W.], 119 AD3d 1012, 1014 [2014]). In view of
the evidence adduced, and according appropriate deference to
Family Court's credibility determinations (see Matter of Blaize
F., 50 AD3d 1182, 1184 [2008]), we find a sound and substantial
basis for the court's finding that respondent neglected the
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subject children by driving in a reckless manner while impaired
by alcohol and while the children were passengers in the car (see
Matter of Darcy Y. [Christopher Z.], 103 AD3d 955, 957 [2013];
Matter of Bianca P. [Theodore A.P.], 94 AD3d 1126, 1126-1127
[2012]; Matter of Megan G., 291 AD2d 636, 639 [2002]; see also
Matter of Draven I. [Jenlyn I.], 86 AD3d 746, 747 [2011]).
Peters, P.J., Lahtinen and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court