Monica G. v. Coleen G.

291 A.D.2d 636, 737 N.Y.S.2d 684
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 14, 2002
StatusPublished
Cited by20 cases

This text of 291 A.D.2d 636 (Monica G. v. Coleen G.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monica G. v. Coleen G., 291 A.D.2d 636, 737 N.Y.S.2d 684 (N.Y. Ct. App. 2002).

Opinion

—Spain, J.

Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.), entered October 6, 2000, which granted petitioner’s application, in proceeding No. 1 pursuant to Family Court Act article 10, to adjudicate respondents’ children to be abused and neglected and entered an order of protection, and (2) from an order of said court, entered November 6, 2000, which, inter alia, granted petitioner’s application, in proceeding No. 2 pursuant to Family Court Act article 6, for sole custody of respondents’ children.

Respondents are the parents of two minor children, Megan G. (born in 1988) and Brian G. (born in 1996), and one adult child, petitioner Monica G. (born in 1979). In May 2000, petitioner Clinton County Department of Social Services (hereinafter petitioner) commenced proceeding No. 1 pursuant to Family Court Act article 10 to adjudicate the two minor children to be abused and neglected as a result of respondents’ use or abuse of alcohol. Thereafter, with respondents’ consent, Family Court issued a preliminary order of protection permitting the minor children to remain at home with respondents and, inter alia, placing respondents under the supervision of [637]*637petitioner. The order directed respondents not to consume alcohol at any time, to follow the treatment recommendations of petitioner, to attend an alcohol abuse program and to refrain from domestic violence and offensive acts toward the children. In June 2000, Monica initiated proceeding No. 2 against respondents, initially seeking visitation with her minor siblings pursuant to Family Court Act article 6 and, by amended petition, seeking sole custody of the children.

Following a lengthy fact-finding hearing in the Family Court Act article 10 proceeding, Family Court found that the minor children were abused and neglected by respondents and ordered that, pending disposition, temporary custody of the children be awarded to Monica with visitation to respondents. After a dispositional hearing, the court entered an order of disposition placing the children with Monica for a period of one year with visitation to respondents and directing respondents to, inter alia, refrain from consuming alcohol, attend and follow the treatment plan of the local alcohol program and cooperate with petitioner. Respondents appeal from that order.

The custody petition filed by Monica was settled on stipulation of the parties, with sole custody of the children to Monica subject to, inter alia, respondents having visitation and being entitled to seek a modification of the custody order upon their successful completion of the alcohol treatment program without being required to show any further change in circumstances. A custody order was entered from which the mother has appealed.

We affirm, first rejecting respondents’ contention that Family Court’s findings as to abuse and neglect are not adequately supported. Parental misconduct and harm, or potential harm to children as the result of such misconduct, must be established by a preponderance of the evidence (see, Matter of Ronnie XX., 273 AD2d 491, 493) and Family Court’s inquiry focuses upon whether the behavior of a parent toward a child requires the aid of the court (see, Matter of Catherine KK., 280 AD2d 732, 734). Further, a child may be adjudicated abused or neglected without proof of actual injury so long as a preponderance of the evidence supports a finding that the child was placed in imminent danger of physical harm (see, Family Ct Act § 1012 [f] [i] [B]; Matter of Scott M., 284 AD2d 589, 591) or in danger of serious injury (see, Family Ct Act § 1012 [e] [ii]).

Here, in large measure, Family Court was presented with credibility issues, the resolution of which it specifically articulated on the record and to which we accord great deference (see, Matter of Catherine KK., supra at 735; Matter of Katie R., 251 AD2d 698, 699, lv denied 92 NY2d 809). Ample evi[638]*638dence was introduced at the fact-finding hearing establishing respondents’ abuse of alcohol. Caseworkers testified that Megan had reported that, as a result of respondents’ drinking, they would pass out and she would have to care for her younger brother, and each of her parents would drink and drive with the children in the vehicle. Specifically, Megan had informed one caseworker that on February 1, 2000, respondent Colleen G. (hereinafter the mother), with Megan and Brian in the vehicle, drove into a snowbank after consuming alcohol and that a passerby, who stopped after the accident, had refused to allow the mother to drive home believing that she was intoxicated. The mother denied being intoxicated, but Megan’s account of this incident was corroborated by the passerby, who testified that the car swerved back and forth prior to going off the road, and when she stopped, she smelled alcohol on the mother’s breath and, based on her observations and experience, concluded that the mother was intoxicated. Megan also reported that in January 2000, respondent Michael G. (hereinafter the father) assaulted her mother, and he was arrested and put in jail.

The testimony of caseworkers also established that the father admitted to, at times, drinking a six-pack of beer a day and occasionally becoming intoxicated and that the mother recognized that their drinking was a problem and admitted to sometimes drinking up to six glasses of wine a day and occasionally becoming intoxicated. One caseworker testified that she made an unannounced visit to respondents’ home on May 24, 200Ó, at which time she observed the father asleep on a couch and the mother smelled of alcohol, had glassy eyes, slurred speech and her emotions were varied and mixed. At this visit, the mother informed the caseworker that, prior to her arrival, she had driven the children to a relative’s home, and Megan later reported that the mother had driven them after consuming alcohol.

Monica also testified that her parents would often pass out from drinking, forcing her to care for the minor children, and they had each operated motor vehicles in an erratic fashion with the children as passengers while, or soon after, consuming alcohol to the point of intoxication. Further, Monica testified as to the history of her parents’ excessive drinking habits and intoxication as she observed them.

The mother testified and admitted that she drinks two to six glasses of wine per day and that, in January 2000, the father assaulted her and was arrested in the presence of Megan. She also testified that, at the time of the assault, the father had [639]*639been drinking heavily. Despite all the evidence to the contrary, the mother insisted that her consumption of alcohol has never interfered with her care for her children. She conceded that she has an alcohol problem, but claimed that she has totally abstained since being ordered to do so by Family Court in May 2000 and has cooperated with the local alcohol abuse program. Other witnesses testified on behalf of respondents, some of whom were aware of respondents’ drinking, generally observing, inter alia, no problems in their care for their children.

Notably, the father failed to testify at the fact-finding hearing, thereby permitting Family Court to draw the strongest inference against him which the opposing evidence would allow (see, Matter of Jared XX., 276 AD2d 980, 983).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

B., TIMOTHY, MTR. OF
Appellate Division of the Supreme Court of New York, 2016
In re Timothy B.
138 A.D.3d 1460 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Emmett RR.
134 A.D.3d 1189 (Appellate Division of the Supreme Court of New York, 2015)
In re Nicolette I.
110 A.D.3d 1250 (Appellate Division of the Supreme Court of New York, 2013)
Christine Y. v. Carrion
75 A.D.3d 831 (Appellate Division of the Supreme Court of New York, 2010)
In re Jesse XX.
69 A.D.3d 1240 (Appellate Division of the Supreme Court of New York, 2010)
Matter of Brittany T.
2007 NY Slip Op 27078 (Chemung Family Court, 2007)
In re Brittany T.
15 Misc. 3d 606 (NYC Family Court, 2007)
In re Alaina E.
33 A.D.3d 1084 (Appellate Division of the Supreme Court of New York, 2006)
In re Anesia E.
23 A.D.3d 465 (Appellate Division of the Supreme Court of New York, 2005)
In re Marie Annette M.
23 A.D.3d 167 (Appellate Division of the Supreme Court of New York, 2005)
In re Corey C.
20 A.D.3d 736 (Appellate Division of the Supreme Court of New York, 2005)
In re Nathaniel
18 A.D.3d 1038 (Appellate Division of the Supreme Court of New York, 2005)
In re Chelsea K.
15 A.D.3d 794 (Appellate Division of the Supreme Court of New York, 2005)
In re Randy V.
13 A.D.3d 920 (Appellate Division of the Supreme Court of New York, 2004)
In re Katlyn GG.
2 A.D.3d 1233 (Appellate Division of the Supreme Court of New York, 2003)
In re Rayshawn R.
309 A.D.2d 681 (Appellate Division of the Supreme Court of New York, 2003)
Yizar v. Sawyer
299 A.D.2d 767 (Appellate Division of the Supreme Court of New York, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
291 A.D.2d 636, 737 N.Y.S.2d 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monica-g-v-coleen-g-nyappdiv-2002.