K., HUNTER, MTR. OF ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
693
CAF 15-00037
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF HUNTER K., BRIANNA K.,
SYLVIA K., AND TIMOTHY B.
--------------------------------------- MEMORANDUM AND ORDER
LIVINGSTON COUNTY DEPARTMENT OF SOCIAL
SERVICES, PETITIONER-RESPONDENT;
PAUL K., RESPONDENT,
AND ROBIN K., RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
JOHN T. SYLVESTER, MT. MORRIS, FOR PETITIONER-RESPONDENT.
KIMBERLY WHITE WEISBECK, ATTORNEY FOR THE CHILDREN, ROCHESTER.
Appeal from an order of the Family Court, Livingston County
(Robert B. Wiggins, J.), entered October 30, 2014 in a proceeding
pursuant to Family Court Act article 10. The order, inter alia,
adjudged that the respondents had neglected the subject children.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter
alia, adjudged that she had neglected her four children. We
previously affirmed the order with respect to the mother’s husband,
who is father of three of the children and stepfather of one of them
(see Matter of Timothy B. [Paul K.], 138 AD3d 1460), and we likewise
affirm the order with respect to the mother. As a preliminary matter,
we exercise our discretion to treat the mother’s notice of appeal from
the fact-finding order as a valid notice of appeal from the
dispositional order (see CPLR 5520 [c]; Matter of Crystiana M.
[Crystal M.– Pamela J.], 129 AD3d 1536, 1537). Furthermore, we agree
with the mother that she is aggrieved by the dispositional order to
the extent that it concerns the fact-finding hearing, and thus her
contentions are properly before us (see Matter of Zoe L. [Melissa L.],
122 AD3d 1445, 1446, lv denied 24 NY3d 918).
We nonetheless reject the mother’s contention that the finding of
neglect is against the weight of the evidence. Under Family Court Act
§ 1046 (a) (iii), there is a presumption of neglect “ ‘if the parent
chronically and persistently misuses alcohol and drugs which, in turn,
substantially impairs his or her judgment while [the] child is
entrusted to his or her care’ ” (Timothy B., 138 AD3d at 1461
-2- 693
CAF 15-00037
[internal quotation marks omitted]). Based on the evidence at the
hearing, we conclude that Family Court properly applied the
presumption here. The caseworker testified at the hearing that the
mother admitted that she drank vodka for days at a time and that she
felt guilty because of the effect that her and her husband’s drinking
had on the children. The caseworker further testified that the
children made statements to her that there were times when the parents
were so intoxicated that the eldest son had to cook for his siblings,
and times when he had to make arrangements for the youngest daughter
to go to friends’ homes so that he could go to work. On at least one
occasion, the youngest daughter hid under furniture to avoid the
parents, who were drinking and fighting. Moreover, there was evidence
that the mother was too intoxicated to protect the children from her
husband, who became physically abusive towards the children when he
was drinking (see Matter of Brian P. [April C.], 89 AD3d 1530, 1531).
We conclude that such evidence is sufficient to establish that
the mother chronically misused alcohol by drinking to the point that
she was intoxicated and incompetent, with substantially impaired
judgment (see Family Ct Act § 1046 [a] [iii]), thereby giving rise to
the presumption of neglect in the instant proceeding. The mother’s
“failure to rebut the presumption of neglect obviated the requirement
that petitioner present evidence establishing actual impairment or
risk of impairment” (Timothy B., 138 AD3d at 1462).
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court