        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1119
CAF 12-00713
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF JAMES D.D., JOSEPH D.,
AND WILKINS F.
-------------------------------------------        MEMORANDUM AND ORDER
YATES COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;

TAMELA F., RESPONDENT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.

SHARON ALLEN, ATTORNEY FOR THE CHILDREN, NAPLES.


     Appeal from an order of the Family Court, Yates County (W.
Patrick Falvey, J.), entered March 23, 2012 in a proceeding pursuant
to Family Court Act article 10. The order, among other things, placed
respondent and the subject minor children under the supervision of
petitioner.

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

     Memorandum: Respondent mother appeals from an order of
disposition that brings up for review an order of fact-finding, in
which Family Court determined that she neglected the children who are
the subject of this proceeding. We affirm. To establish neglect, it
was petitioner’s burden to “demonstrate by a preponderance of the
evidence ‘first, that [the] child[ren’s] physical, mental or emotional
condition has been impaired or is in imminent danger of becoming
impaired and second, that the actual or threatened harm to the
child[ren] is a consequence of the failure of the parent . . . to
exercise a minimum degree of care in providing the child[ren] with
proper supervision or guardianship’ ” (Matter of Ilona H. [Elton H.],
93 AD3d 1165, 1166, quoting Nicholson v Scoppetta, 3 NY3d 357, 368;
see Family Ct Act §§ 1012 [f] [i] [B]; 1046 [b] [i]). In determining
whether petitioner met its burden, “[w]e must give great deference to
[the court]’s assessment of the credibility of the witnesses at the
fact-finding hearing,” and we note that the court’s decision “ ‘will
not be disturbed unless [it] lack[s] a sound and substantial basis in
the record’ ” (Ilona H., 93 AD3d at 1166). Here, we conclude that the
court’s decision has a sound and substantial basis in the record. The
undisputed evidence at the hearing established that the mother’s
husband repeatedly misused alcohol to the point of intoxication (see §
1046 [a] [iii]), and that the harm to the children was causally
related to the mother’s failure to acknowledge, confront, and
                                 -2-                         1119
                                                        CAF 12-00713

adequately address her husband’s alcohol abuse and associated
aggressive behavior (see Matter of Kimberly Z. [Jason Z.], 88 AD3d
1181, 1183, 1185; Matter of Ian DD., 252 AD2d 669, 670; cf. Matter of
Tomas E. [appeal No. 2], 295 AD2d 1015, 1019). Finally, the mother
failed to preserve for our review her contention that the court erred
in requesting an oral report from the Attorney for the Children and,
in any event, any alleged error is harmless (see Matter of Amy L.W. v
Brendan K.H., 37 AD3d 1060, 1061).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
