Greene Cnty. Dep't of Soc. Servs. v. Peggy P. (In re Josiah P.)

197 A.D.3d 1365

153 N.Y.S.3d 645

In the MATTER OF JOSIAH P. and Another, Alleged to be Neglected Children.

Greene County Department of Social Services, Respondent;

v.Peggy P., Appellant.

(Proceeding No. 1.)

In the Matter of Josiah P. and Another, Alleged to be Neglected Children.

Greene County Department of Social Services, Respondent;

v.Corey O., Appellant.

(Proceeding No. 2.)

(And Two Other Related Proceedings.)

529852

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 9, 2021

Decided and Entered: September 2, 2021

Dana L. Salazar, East Greenbush, for Peggy P., appellant.

Michelle I. Rosien, Philmont, for Corey O., appellant.

Greene County Department of Social Services, Catskill (Jennifer Sandleitner of counsel), for respondent.

Daniel Gartenstein, Kingston, attorney for the children.

Pamela J. Joern, East Chatham, attorney for the child.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeals from three orders of the Family Court of Greene County (Wilhelm, J.), entered June 12, 2019 and July 12, 2019, which, among other things, granted petitioner's applications, in four proceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

Respondent Corey O. (hereinafter the father) is the biological father of three children (born in 2011, 2012 and 2013) and is the stepfather of two biological children (born in 2007 and 2013) of respondent Peggy P. (hereinafter the mother). Respondents were married in April 2018. In February 2019, petitioner commenced these four proceedings seeking to adjudicate the five subject children to be neglected by respondents based on an incident occurring on January 1, 2019, which prompted the oldest child to call the police and report that the father was trying to hurt the mother. Following that incident and one day prior to the commencement of these proceedings, respondents consented to the removal of the children and to the children's placement in foster care. The neglect petitions alleged that respondents engaged in acts of domestic violence and misused alcohol to the point of intoxication while caring for the children.

After a two-day fact-finding hearing, Family Court found that the children were neglected by respondents. Following a dispositional hearing, the court entered two orders of disposition setting forth certain conditions, including that respondents would remain under the supervision of petitioner for one year and that respondents may have visitation with the children at the discretion of petitioner. Respondents appeal.¹

Respondents and the attorneys for the children² assert that Family Court's finding of neglect is not supported by a sound and substantial basis in the record. " ‘[T]he party seeking to establish neglect[ ] is required to prove by a preponderance of the evidence that the children's physical, mental or emotional condition was impaired or was imminently in danger of becoming impaired and that the actual or threatened harm to the children was a consequence of [the respondents’] failure to exercise a minimum degree of care in providing the children with proper supervision or guardianship’ " ( Matter of Kaitlyn SS. [Antonio UU.], 184 A.D.3d 961, 962, 125 N.Y.S.3d 200 [2020], quoting Matter of Ellysha JJ. [Jorge JJ.], 173 A.D.3d 1287, 1287, 103 N.Y.S.3d 177 [2019], lv denied 34 N.Y.3d 901, 2019 WL 5382380 [2019] [brackets omitted]). " ‘A finding of neglect is premised upon a finding of serious or imminent harm to the [children], not just on what might be deemed undesirable parental behavior’ " ( Matter of Messiah RR. [Christina RR.], 190 A.D.3d 1055, 1057, 137 N.Y.S.3d 600 [2021], quoting Matter of Thomas XX. [Thomas YY.], 180 A.D.3d 1175, 1176, 119 N.Y.S.3d 604 [2020] ). Imminent danger must be near or impending, not merely possible (see Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; Matter of Thomas XX. [Thomas YY.], 180 A.D.3d at 1176, 119 N.Y.S.3d 604 ).

"At a fact-finding hearing, only ‘competent, material and relevant evidence’ may be admitted" ( Matter of Lydia DD. [Khalil P.], 110 A.D.3d 1399, 1400, 974 N.Y.S.2d 169 [2013], quoting Family Ct Act § 1046[b][iii] [citations omitted]). "A child's previous out-of-court allegations of abuse or neglect are admissible but, to support a finding of abuse or neglect, must be corroborated by other evidence introduced during the proceeding that tends to establish their reliability" ( Matter of Justin CC. [Tina CC.], 77 A.D.3d 1056, 1057, 909 N.Y.S.2d 771 [2010] [internal quotation marks and citations omitted], lv denied 16 N.Y.3d 702, 2011 WL 135182 [2011] ; see Matter of Lily BB. [Stephen BB.], 191 A.D.3d 1126, 1127, 142 N.Y.S.3d 219 [2021], lv denied 37 N.Y.3d 927, 146 N.Y.S.3d 868, 169 N.E.3d 1231 [2021] ). " ‘[O]nly a relatively low degree of corroborative evidence is necessary to satisfy this standard, and the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record’ " ( Matter of Charles Q. [Pamela Q.], 182 A.D.3d 639, 640, 122 N.Y.S.3d 155 [2020], quoting Matter of Lawson O. [Andrew O.], 176 A.D.3d 1320, 1321, 111 N.Y.S.3d 423 [2019], lv denied 35 N.Y.3d 902, 2020 WL 2079097 [2020] ).

At the fact-finding hearing, a 911 dispatcher testified that, on January 1, 2019 at 10:00 p.m., he received a call regarding an incident at a residence in the Town of Coxsackie, Greene County, and the audio recording of the 911 call was played. Notably, the oldest child stated that the father "just broke into my house" and that the mother was in "trouble." The oldest child responded in the negative upon being asked if the father had a weapon, but asked police to hurry because the father had "gone literally nuts." A state trooper testified that on January 1, 2019, at approximately 10:15 p.m., he responded to a 911 call at the address given in the 911 call; upon arrival, he observed the father outside of the residence. The trooper testified that the father appeared intoxicated and admitted that he had been consuming alcohol that evening. The trooper detained the father in a police vehicle and then interviewed the mother, who stated that she and the father had gotten into an argument when the oldest child told the mother that the father had given her alcohol. According to the trooper, the mother had locked the father out of the house but he was able to get back inside, at which point an argument between respondents ensued. The trooper stated that the mother reported that the argument had involved pushing, shoving and furniture being knocked over and that the oldest child left the residence and called 911. The trooper stated that the father had scratches on his face. On cross-examination, the trooper conceded that that he did not administer a breathalyzer test to the father. The trooper also confirmed that the oldest child told him that the father had given her "three or four shots of [r]um," but that she did not appear intoxicated and a breath test determined her blood alcohol level to be .01.

Another state trooper testified that he was dispatched to respond to a disturbance at the same residence approximately nine months earlier, on the evening of April 17, 2018, and that, when he arrived on scene, there was an intoxicated male outside of the residence claiming that his car had been damaged by respondents. This trooper learned that there had been a party at the residence that evening where a child of the mother, who was under the age of 21, and others had been given alcohol.

Ultimately, based on these allegations, the mother and the father were arrested for unlawful dealing with a child and criminal mischief.

A caseworker employed by petitioner testified that she became involved in an investigation of respondents after petitioner received a report regarding the January 1, 2019 incident. The caseworker testified that she interviewed the oldest child a few weeks later regarding the incident and the oldest child told the caseworker that the father had given her three shots of alcohol on that evening. The caseworker testified that the oldest child indicated during their interview that the mother and the father fight and, on that night, she had called the police from her grandfather's house because the father had put his hands on the mother. The caseworker stated that she interviewed one of the other children, who said that the mother and the father "fight with their words." The caseworker testified that she interviewed the father's children together, who revealed their knowledge of respondents drinking beer and not getting along. A second caseworker employed by petitioner testified that petitioner received a report in the early morning on January 2, 2019 regarding a domestic incident that had occurred the night before. The second caseworker interviewed the mother, who stated that she and the father had gotten into an argument and that the father was not acting like himself and "kind of lost his mind." In the second caseworker's interview with the oldest child, she stated that the father gave her "three to five shots" of rum. The second caseworker stated that the mother has a history of three indicated reports, and the father has a history of one indicated report.

In opposition, the grandfather testified that he lives approximately 250 feet away from respondents’ residence and, on January 1, 2019, he went to their residence to have dinner. The grandfather stated that he brought a "pocket size bottle" of rum with him that evening and that he was "the primary person drinking it." The grandfather further testified that he left the bottle on the kitchen counter while he and the mother were in the basement; according to the grandfather, the father and the oldest child were still upstairs. The grandfather stated that the oldest child called...