Opinion
10923 Dkt 26042-43/17
01-30-2020
In re JANIYA P. and Another, Children Under Eighteen Years of Age, etc., Petitioners-Appellants, v. SCOTT G., et al., Respondents-Respondents
Dawne A. Mitchell, The Legal Aid Society, New York (Israel T. Appel of counsel), for appellants. Michele Cortese, Center for Family Representation, Inc., New York (Emily S. Wall of counsel), for Scott G., respondent. James E. Johnson, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for Administration for Children's Services, respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Israel T. Appel of counsel), for appellants.
Michele Cortese, Center for Family Representation, Inc., New York (Emily S. Wall of counsel), for Scott G., respondent.
James E. Johnson, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for Administration for Children's Services, respondent.
Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.
Order, Family Court, New York County (Jonathan H. Shim, J.), entered on or about November 30, 2018, which dismissed, after a hearing, the neglect petitions against respondent, unanimously reversed, on the law and the facts, without costs, the petitions reinstated, findings of neglect entered against respondent, and the matter remanded for a dispositional hearing.
Respondent is the father of the youngest subject child and a person legally responsible for the mother's eldest child within the meaning of Family Court Act § 1012(g).
A preponderance of the evidence supports a finding that respondent neglected the children by committing an act of domestic violence against the children's mother. The evidence shows that while in the proximity of the children, respondent grabbed the mother by the hair and dragged her into the apartment after she returned, together with the children, from the hospital, and all three were standing together outside the apartment while the mother tried to persuade respondent to allow them inside (see Family Ct Act §§ 1012[f][i][B], 1046[b][i] ; Matter of Andru G. [Jasmine C.] , 156 A.D.3d 456, 457, 64 N.Y.S.3d 886 (1st Dept. 2017) ; Matter of Isabella S. [Robert T.] , 154 A.D.3d 606, 62 N.Y.S.3d 362 (1st Dept. 2017) ).
The court also erred in failing to draw a negative inference against respondent for failing to testify or present evidence at the hearing (see Matter of Nah–Ki B. [Nakia B.] , 143 A.D.3d 703, 706, 38 N.Y.S.3d 593 (2d Dept. 2016) ).