IN RE: DUSTIN P.

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

IN RE: DUSTIN P. Oneida County Department of Social Services, Petitioner-Respondent; Richard P., Respondent-Appellant, et al., Respondents.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, FAHEY, AND GORSKI, JJ. John T. Nasci, Rome, for Respondent-Appellant. John G. Koslosky, Law Guardian, Utica, for Dustin P.

 Respondent father appeals from an order adjudicating his son to be a neglected child.   Contrary to the contention of the father, Family Court properly denied his motion to dismiss the second amended petition at the close of petitioner's proof inasmuch as petitioner established a prima facie case of neglect by presenting evidence of “ ‘both parental misconduct and harm or potential harm to [the] child’ ” (Matter of Kenneth V. [Appeal No. 2], 307 A.D.2d 767, 768, 761 N.Y.S.2d 422).   A parent's “failure to provide medical care as required by [Family Court Act § 1012(f)(i)(A) ] may be interpreted to include psychiatric medical care where it is necessary to prevent the impairment of the child's emotional condition” (Matter of Felicia D., 263 A.D.2d 399, 399, 693 N.Y.S.2d 41).   Here, petitioner presented evidence that the child's behavioral issues, which included suicidal and homicidal ideations, were a direct result of the conflict among the child's three caregivers, i.e., the father, the mother, and the stepmother.   The father, however, refused to pursue the recommended family therapy and did not offer an alternative form of treatment until the child had sustained a spinal fracture after jumping out of a second-floor window at the father's residence (see e.g. Matter of William AA., 24 A.D.3d 1125, 1126-1127, 807 N.Y.S.2d 181, lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 601, 847 N.E.2d 1173;  Matter of Perry S., 22 A.D.3d 234, 802 N.Y.S.2d 115).   The father thus breached his “nondelegable affirmative duty to provide [his] child with adequate medical care” (Matter of Hofbauer, 47 N.Y.2d 648, 655, 419 N.Y.S.2d 936, 393 N.E.2d 1009).   The father failed to rebut petitioner's prima facie case (see generally Matter of Kayla C., 19 A.D.3d 692, 693, 797 N.Y.S.2d 559), and we conclude that the finding of neglect is supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i];  Matter of Amanda M., 28 A.D.3d 813, 815, 812 N.Y.S.2d 708).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: