Matter of Naqi T. (Marlena S.)

Matter of Naqi T. (Marlena S.) 2015 NY Slip Op 04737 Decided on June 4, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 4, 2015
Tom, J.P., Sweeny, Moskowitz, DeGrasse, Richter, JJ.
15298

[*1]15299 In re Naqi T., and Another, Children Under the Age of Eighteen Years, etc.,

and

Marlena S., Respondent-Appellant, Administration for Children's Services, et al., Petitioners-Respondents, Shaka T., etc., et al., Nonparty Respondents.

Andrew J. Baer, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for Administration for Children's Services, respondent.

Larry S. Bachner, Jamaica, for Shaka T., respondent.

Bruce A. Young, New York, for Wadner N., respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.

Orders, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about January 23, 2014, which, upon a fact-finding determination that respondent mother neglected the subject children, granted custody of the children to their respective fathers, unanimously affirmed, without costs.

The finding of neglect is supported by a preponderance of the evidence, which demonstrates that respondent's alcohol abuse impaired the children's physical, mental or emotional condition or placed the children at imminent risk of impairment (see Matter of Nasiim W. [Keala M.], 88 AD3d 452 [1st Dept 2011]; Family Court Act §§ 1012[f][i][B]; 1046[b][i]). The children wore tattered, dirty clothing and gave off an odor; Naqi's classmates refused to sit near him (see Matter of China C. [Alexis C.], 116 AD3d 953, 954 [2d Dept 2014], lv dismissed 23 NY3d 1047 [2014]; Matter of David II., 49 AD3d 1093 [3rd Dept 2008]). Naqi, who is autistic and attends a small, specialized class, also missed an excessive number of days of school to his detriment (see Matter of Jaquan F. [Alexis F.], 120 AD3d 1113 [1st Dept 2014]).

The record establishes that it is in the best interests of the children to be in the custody of their respective fathers (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). While continuing to live with siblings is often in a child's best interest, this is "not an absolute" (id. at 173); both fathers have expressed a willingness to ensure that each sibling enjoys frequent contact with the other (see Matter of Shayna R., 57 AD3d 262, 263 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 4, 2015

CLERK