Adam D., Respondent-Appellant. v. <<

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

Matter of HEATHER D. Niagara County Department of Social Services, Petitioner-Respondent; Adam D., Respondent-Appellant.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., HURLBUTT, KEHOE, SMITH, AND HAYES, JJ. Kathleen E. Casey, Middleport, for Respondent-Appellant. Thomas W. Scirto, Lockport, for Petitioner-Respondent.

Respondent appeals, as limited by his brief, from so much of an order in a proceeding pursuant to Family Court Act article 10 as determined, upon a fact-finding hearing, that he neglected his daughter, Heather.   To establish neglect, petitioner was required to establish, by a preponderance of the evidence, that Heather's “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [respondent] to exercise a minimum degree of care ․ in providing [Heather] with proper supervision or guardianship, ․ by misusing alcoholic beverages to the extent that he loses self-control of his actions” (§ 1012 [f] [i][B];  see Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038).   Petitioner established that respondent became highly intoxicated, locked himself in his apartment with two-week-old Heather, and then passed out.   Neither Heather's mother nor the police were able to rouse him, and the police eventually had to force open the apartment door to gain access to the crying child.   Respondent's conduct placed Heather at obvious risk in the event of an emergency (see Matter of Stoops v. Perales, 117 A.D.2d 7, 9, 501 N.Y.S.2d 489) and constituted neglect (see Matter of Pedro C., 1 A.D.3d 267, 268, 767 N.Y.S.2d 578;  Matter of Evangeline X., 256 A.D.2d 683, 684, 681 N.Y.S.2d 146).

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

MEMORANDUM: