PETITIONER APPELLANT DAVID AND SHANA RESPONDENTS RESPONDENTS v. << (2013)

MEMORANDUM AND ORDER

ANDREW ROBY, ATTORNEY FOR THE CHILDREN, CANISTEO.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion with respect to respondent Shana M. and reinstating that part of the petition, and as modified the order is affirmed without costs and the matter is remitted to Family Court, Steuben County, for further proceedings.

Memorandum:  Petitioner appeals from an order granting respondents' motion to dismiss the neglect petition at the close of petitioner's case during a fact-finding hearing.   Petitioner's contention that Family Court erred in dismissing the petition is limited to the allegation that the children are neglected children based upon the misuse of alcohol by respondent mother, Shana M., and thus petitioner has abandoned its contention with respect to respondent father/stepfather, David M. (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985).   With respect to the allegation of neglect against the mother, her 16–year–old son testified that she drinks beer nearly every day and that she often drinks beer all day and evening.   A caseworker testified that the younger son told her that his mother starts drinking before he goes to school and is still drinking when he goes to bed.   Viewing the evidence in the light most favorable to petitioner, we conclude that petitioner established a prima facie case of neglect based on the evidence that the mother “repeatedly misuses ․ alcoholic beverages ․ to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of ․ intoxication” (Family Ct Act § 1046[a][iii];  see Matter of Alfonzo H. [Cassie L.], 77 AD3d 1410, 1411).   We thus conclude that the court erred in granting the motion to dismiss with respect to the mother.

We reject petitioner's contention that the court abused its discretion in precluding the testimony of a witness that petitioner failed to identify in response to respondents' demand for a list of petitioner's witnesses (see generally McCarter v. Woods, 106 AD3d 1540, 1541).

We therefore modify the order accordingly, and we remit the matter to Family Court for further proceedings on the petition with respect to the mother.

Frances E. Cafarell

Clerk of the Court