IN RE: DARCY Y. and Another

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

IN RE: DARCY Y. and Another, Alleged to be Neglected Children. Ulster County Department of Social Services, Respondent; Christopher Z., Appellant.

-- February 14, 2013

Before: PETERS, P.J., LAHTINEN, GARRY and EGAN JR., JJ. Ted J. Stein, Woodstock, for appellant. Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. Marian B. Cocose, Bearsville, attorney for the children.

Appeal from an order of the Family Court of Ulster County (McGinty, J.), entered January 5, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

On the afternoon of August 7, 2011, respondent and his live-in girlfriend of three years (hereinafter the mother) attended a family wedding with the children who are the subject of this proceeding. When the group left the reception later that evening, the mother was driving, and respondent, the mother's two children and respondent's niece were passengers in the vehicle. Shortly thereafter, a local police officer pulled over the mother's vehicle due to an equipment violation and, after detecting a “strong odor of alcoholic beverage coming from the vehicle,” administered field sobriety tests to the mother. The mother was arrested, and respondent and the children walked to a friend's house nearby.

Petitioner thereafter commenced separate neglect proceedings against respondent and the mother. The proceeding against the mother was adjourned in contemplation of dismissal following the mother's admission that she operated a motor vehicle with her children in the back seat while under the influence of alcohol—specifically, with a blood alcohol level of .10%. Following a hearing, Family Court found that respondent neglected the subject children by allowing the mother to operate a motor vehicle under those circumstances. As to disposition, Family Court, among other things, placed respondent under the supervision of petitioner for one year. This appeal by respondent ensued.1

We affirm. Initially, respondent does not dispute—and the record supports Family Court's finding—that respondent is a person legally responsible for the children's care (see Family Ct Act § 1012[g] ). To that end, a child may be adjudicated to be neglected when a parent or caretaker “knew or should have known of circumstances which required action in order to avoid actual or potential impairment of the child and failed to act accordingly” (Matter of Kimberly Z. [Jason Z.], 88 A.D.3d 1181, 1185 [2011] [internal quotation marks and citations omitted]; accord Matter of Stevie R. [Arvin R.], 97 A.D.3d 906, 907 [2012]; see Matter of Alaina E., 33 A.D.3d 1084, 1086 [2006] ). “The parental [or custodial] behavior asserted as a basis for neglect is measured against the behavior of a reasonable and prudent parent faced with the same circumstances” (Matter of Michael VV. [Arthur VV.], 68 A.D.3d 1210, 1211 [2009] [internal quotation marks and citations omitted] ).

Contrary to respondent's assertion, the issue is not whether the record demonstrates that he was intoxicated on the night in question; rather, the relevant inquiry is whether the record as a whole supports the finding that respondent knew or should have known that the mother was intoxicated and, therefore, neglected the children by allowing them to ride in a car operated by her. Although respondent contends that he spent very little time with the mother during the approximately seven hours that they were at the wedding reception, did not “directly” see her consume any alcohol, did not smell any alcohol on her breath and did not witness anything in her demeanor that would have suggested that she was intoxicated, his testimony stands in marked contrast to the police officer's observations regarding the “strong odor” of alcohol emanating from the mother's vehicle and the mother's admission that she was operating a motor vehicle with a blood alcohol level of .10%. This conflict in the testimony presented a credibility issue for Family Court to resolve (see Matter of Paige AA. [Anthony AA.], 85 A.D.3d 1213, 1216 [2011], lv denied 17 N.Y.3d 708 [2011] ), and we are satisfied that the record indeed supports the finding that respondent neglected the children by allowing them to ride in a motor vehicle driven by their mother when he knew or should have known that the mother was intoxicated (see Matter of Bianca P. [Theodore A.P.], 94 A.D.3d 1126, 1127 [2012]; Matter of Tylasia B. [Wayne B.], 72 A.D.3d 1074, 1075 [2010], lv denied 15 N.Y.3d 713 [2010]; cf. Matter of Draven I. [Jenlyn I.], 86 A.D.3d 746, 747 [2011] ). Respondent's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.

EGAN JR., J.

PETERS, P.J., LAHTINEN and GARRY, JJ., concur.

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