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

150
CAF 14-01530
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF TRINITY E.
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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,      MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

CHRISTIE J.C., RESPONDENT,
AND ROBERT E., RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. PIXLEY OF
COUNSEL), FOR RESPONDENT-APPELLANT.

MERIDETH SMITH, COUNTY ATTORNEY, ROCHESTER (CAROL EISENMAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.

PAUL B. WATKINS, ATTORNEY FOR THE CHILD, FAIRPORT.


     Appeal from an order of the Family Court, Monroe County (Patricia
E. Gallaher, J.), entered July 7, 2014 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that respondent Robert E. had neglected the subject child.

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

     Memorandum: In this proceeding pursuant to article 10 of the
Family Court Act, respondent father appeals from an order finding that
he neglected his daughter. We reject the father’s contention that
Family Court erred in basing its finding of neglect on matters not
contained in the petition, i.e., on the subject child’s failure to
thrive while in the father’s care. The record establishes that the
court based its finding of neglect on the allegations in the petition,
and only noted in a footnote that the child had failed to thrive.

     We also reject the father’s contention that the court’s finding
of neglect is not supported by a preponderance of the evidence (see
Family Ct Act § 1046 [b] [i]). Pursuant to Family Court Act § 1012
(f) (i) (B), “there must be ‘proof of actual (or imminent danger of)
physical, emotional or mental impairment to the child’ . . . In order
for danger to be ‘imminent,’ it must be ‘near or impending, not merely
possible’ . . . Further, there must be a ‘causal connection between
the basis for the neglect petition and the circumstances that
allegedly produce the . . . imminent danger of impairment’ ” (Matter
of Afton C. [James C.], 17 NY3d 1, 9). Here, the court properly
concluded that the subject child was in imminent danger of physical,
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                                                         CAF 14-01530

emotional or mental impairment based on the father’s long-standing
history of mental illness and his failure to obtain treatment for it
(see Matter of Alexis H. [Jennifer T.], 90 AD3d 1679, 1680, lv denied
18 NY3d 810; cf. Matter of Lacey-Sophia T.-R. [Ariela (T.)W.], 125
AD3d 1442, 1445), and his failure to seek treatment for substance
abuse issues (see Matter of Alim Lishen Laquan R., 63 AD3d 947, 947-
948). The court also found that the father had permitted the child to
be cared for by respondent mother, whom the father knew to be an
unsuitable caregiver (see Matter of Claudina E.P. [Stephanie M.], 91
AD3d 1324, 1324; Matter of Donell S. [Donell S.], 72 AD3d 1611, 1612,
lv denied 15 NY3d 705). Finally, “[t]he exposure of the child to
domestic violence between the parents may form the basis for a finding
of neglect” (Matter of Michael G., 300 AD2d 1144, 1144), and thus we
reject the father’s contention that the court erred in relying upon an
incident of domestic violence committed by the father as an additional
ground for its finding of neglect (see generally Nicholson v
Scoppetta, 3 NY3d 357, 375).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
