State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 7, 2016 518986 

________________________________

In the Matter of MARCUS JJ. 

and Another, Alleged to be 

Neglected Children.

CHEMUNG COUNTY DEPARTMENT OF MEMORANDUM AND ORDER

SOCIAL SERVICES,

Respondent;

ROBIN JJ.,

Appellant.

________________________________

Calendar Date: November 23, 2015

Before: Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.

__________

A.L. Beth O'Connor, Cortland, for appellant.

Donald S. Thomspon, Chemung County Department of Social

Services, Elmira, for respondent.

Ingrid Olsen-Tjensvold, Ithaca, attorney for the child.

Donna C. Chin, Ithaca, attorney for the child.

__________

Clark, J.

Appeal from an order of the Family Court of Chemung County

(Brockway, J.), entered May 1, 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 mother of two sons, born in 1998 and

2002. Since May 2012, respondent has been involved with child
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protective services and her ability to supervise her children has

been called into question. After being adjudicated juvenile

delinquents in 2013 as the result of burglarizing a school, both

children were subsequently removed from respondent's custody

pursuant to Family Ct Act article 3 and placed at a group home as

juveniles released under supervision. Respondent was allowed

unsupervised visits with the children until September 2013, when

she submitted a urine screen that tested positive for cocaine, at

which point all subsequent visits with the children were

supervised. Based in part on these facts, as well as upon

allegations that respondent exposed the children to domestic

violence, petitioner commenced this proceeding in November 2013,

seeking an adjudication of neglect for both children.1 Following

the fact-finding and dispositional hearings, Family Court

determined that the children were neglected, placed the younger

son with his maternal grandmother and ordered that the older son

remain in the group home. Respondent now appeals and we affirm.

Initially, we find no merit in respondent's contention that

she was not a "person legally responsible" for the children

pursuant to Family Ct Act § 1012 (g) because she did not have

custody of her children at the time the alleged neglect occurred. 

As the children's biological mother, respondent "meets the

statutory requirement that a respondent in a Family Ct Act

article 10 proceeding be either a 'parent or other person legally

responsible for a child's care'" (Matter of Heyden Y. [Miranda

W.], 119 AD3d 1012, 1012 [2014], quoting Family Ct Act § 1012 [a]

[emphasis added]). As such, she is a proper party, "without

regard to whether she was also a '[p]erson legally responsible'

for the child's care at the pertinent time" (Matter of Heyden Y.

[Miranda W.], 119 AD3d at 1012, quoting Family Ct Act § 1012 [g];

see Matter of Erica B. [Quentin B.], 79 AD3d 415, 415 [2010], lv

denied 16 NY3d 703 [2011]; see also Family Ct Act § 1013 [d]).

Turning to the merits, we find no basis upon which to

disturb Family Court's finding of neglect. A finding of neglect

will be sustained if petitioner demonstrated, by a preponderance

1 A supplemental petition setting forth the same

substantive allegations was filed by petitioner in March 2014. 
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of evidence, that the child's physical, mental or emotional

condition was harmed or is in imminent danger of such harm as a

result of the parent's failure to exercise a minimum degree of

care that a reasonably prudent person would have used under the

circumstances (see Matter of Hailey XX. [Angel XX.], 127 AD3d

1266, 1268 [2015]; Matter of Heyden Y. [Miranda W.], 119 AD3d at

1013). In this regard, "[t]here are two prongs: actual or

imminent danger, and failure to exercise a minimum degree of

care" (Matter of Javan W. [Aba W.], 124 AD3d 1091, 1091 [2015],

lv denied 26 NY3d 905 [2015]). As relevant here, impairment of a

child's mental or emotional condition includes "acting out or

misbehavior, including incorrigibility, ungovernability or

habitual truancy," so long as the impairment is "clearly

attributable to the unwillingness or inability of the respondent

to exercise a minimum degree of care toward the child" (Family Ct

Act § 1012 [h]; see Nicholson v Scoppetta, 3 NY3d 357, 369-370

[2004]).

In reaching its decision, Family Court properly relied on

the testimony of petitioner's witnesses – Susan Moore, a

caseworker for the Chemung County Child Protective Unit, Erica

Bales, a social worker at the group home where the children were

placed, Nicole Tondryk, a child-care worker with William George

Agency, and Cory Burns, one of petitioner's caseworkers. Their

testimony established that respondent was often irate, yelled and

used profanities during meetings with the children and

caseworkers and, on multiple occasions, the children had to be

removed from these meetings because of respondent's behavior. 

Bales and Burns stated that the children would "mirror"

respondent's behavior and use the same inappropriate language

toward employees at the group home. According to Tondryk and

Burns, respondent also directed horrible insults toward her older

son, told him everything was his fault and verbally and

physically threatened him during a supervised home visit. 

Respondent admitted to having hit the older son in the mouth

during a visit which, according to Tondryk, caused the child to

become upset to the point of having to be restrained. It was

also established that respondent tested positive for cocaine in

September 2013 and, thereafter, she refused to undergo any more

drug tests even though she knew she would not be able to have

unsupervised visits with her children until her drug tests were
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negative. Thus, giving due deference to Family Court's findings

of fact and its determinations of the witnesses' credibility,

Family Court's finding of neglect is supported by the record (see

Family Ct Act § 1012 [h]; Matter of Kasiana UU. [Ricki TT.], 129

AD3d 1150, 1151-1152 [2015]; Matter of Lamarcus E. [Jonathan E.],

94 AD3d 1255, 1258 [2012]). 

Further, the evidence at the fact-finding hearing revealed

that respondent's paramour physically abused her on multiple

occasions and that the children's well-being was endangered as a

result. Although respondent denied that her children ever

witnessed the incidents of domestic violence, testimony from

Moore and Burns revealed not only that the children had witnessed

them, but that they were upset by them and were afraid of

respondent's paramour.2 Despite being told that she should not

allow this man to be around the children, respondent nonetheless

brought him to a meeting with her children at the group home and

the older son said that the paramour was at respondent's home

during one of their supervised visits, a fact that respondent

denied. According deference to Family Court's assessment finding

respondent's testimony incredible, "there is sound and

substantial support in the record of the child[ren]'s exposure to

domestic violence as an additional basis for the finding of

neglect" (Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103

[2011], lv denied 18 NY3d 802 [2011]; see Matter of Armani KK.

[Deborah KK.], 81 AD3d 1001, 1002 [2011], lvs denied 16 NY3d 711,

712 [2011]; Matter of Xavier II., 58 AD3d 898, 899 [2009]). 

Thus, Family Court's order must be affirmed.

Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.

2 While much of the evidence regarding the domestic

violence was in the form of hearsay statements made by the

children, these statements, as Family Court expressly found, were

sufficiently corroborated by the other witnesses, and Family

Court did not err in considering them (see Matter of Dakota CC.

[Arthur CC.], 78 AD3d 1430, 1430 [2010]; Matter of Lindsey BB.

[Ruth BB.], 70 AD3d 1205, 1206 [2010]).
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court