Opinion
2021–02690 Docket No. N–19098–18
10-12-2022
In the MATTER OF KINGSTON T. (Anonymous). Administration for Children's Services, petitioner-respondent; v. Diamond T. (Anonymous), appellant, et al., respondent.
Catherine S. Bridge, Staten Island, NY, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jane L. Gordon of counsel), for petitioner-respondent. Joanna Galia, Brooklyn, NY, attorney for the child.
Catherine S. Bridge, Staten Island, NY, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jane L. Gordon of counsel), for petitioner-respondent.
Joanna Galia, Brooklyn, NY, attorney for the child.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, DEBORAH A. DOWLING, LILLIAN WAN, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Kings County (Ilana Gruebel, J.), dated February 19, 2021. The order of fact-finding, insofar as appealed from, after a fact-finding hearing, found that the mother neglected the subject child.
ORDERED that the order of fact-finding is reversed insofar as appealed from, on the facts, without costs or disbursements, and the finding that the mother neglected the subject child is vacated.
The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10 alleging, inter alia, that the mother neglected the subject child by engaging in acts of domestic violence in the presence of the child during an altercation with the father on November 2, 2018. In an order of fact-finding dated February 19, 2021, made after a fact-finding hearing, the Family Court found, among other things, that the mother neglected the child by engaging with the father "in a verbal and physical altercation which caused the child emotional harm and put him at risk of physical harm." The mother appeals.
In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act § 1046[b] ; Matter of Sage H. [Lovette H.], 204 A.D.3d 795, 796, 164 N.Y.S.3d 460 ). " ‘[A] finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence’ " ( Matter of Simone C.P. [Jeffry F.P.], 182 A.D.3d 554, 555, 120 N.Y.S.3d 784, quoting Matter of Ariella S. [Krystal C.], 89 A.D.3d 1092, 1093, 934 N.Y.S.2d 422 [internal quotation marks omitted]). "However, ‘exposing a child to domestic violence is not presumptively neglectful,’ " and " ‘[n]ot every child exposed to domestic violence is at risk of impairment’ " ( Matter of Simone C.P. [Jeffry F.P.], 182 A.D.3d at 555, 120 N.Y.S.3d 784, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 375, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "The Legislature's requirement of actual or imminent danger of impairment prevents state intrusion into private family life in the absence of ‘serious harm or potential harm to the child, not just ... what might be deemed undesirable parental behavior’ " ( Matter of Javan W. [Aba W.], 124 A.D.3d 1091, 1091, 2 N.Y.S.3d 654, quoting Nicholson v. Scoppetta, 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). Here, the Family Court's finding that the mother neglected the subject child based on a domestic violence incident on November 2, 2018, was not supported by a preponderance of the evidence. While testimony was elicited from the paternal grandmother that the subject child, then under two months old, was somewhere in an apartment with the mother and the father while they yelled at each other, the grandmother testified that she removed the child from that apartment prior to any acts of domestic violence. The evidence that the mother and the father engaged in a loud verbal argument in the presence of their infant child was insufficient to establish that the child's physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired (see Matter of Malachi M. [Mark M.], 164 A.D.3d 794, 796, 83 N.Y.S.3d 150 ; Matter of Imani B., 27 A.D.3d 645, 646, 811 N.Y.S.2d 447 ). Further, while the grandmother testified that she subsequently came out of her separate apartment into a hallway while holding the child when the mother and the father were engaged in acts of domestic violence in the hallway, no evidence was presented that the infant child observed, or was aware of, any acts of domestic violence (see Matter of Eternity S. [Vanessa P.], 183 A.D.3d 748, 751, 122 N.Y.S.3d 667 ; Matter of Dalia G. [Frank B.], 128 A.D.3d 821, 824, 10 N.Y.S.3d 113 ; Matter of Harper F.-L. [Gary L.], 125 A.D.3d 652, 654–655, 3 N.Y.S.3d 116 ). Notably, the grandmother testified that she only "briefly" observed someone with a knife before leaving the hallway with the child to alert building security, and she was unable to tell whether the mother or the father was holding the knife during that "brief" period. Moreover, no evidence was presented that the child was in sufficient proximity to the mother and father during the altercation in the hallway so as to place the child at any risk of physical harm.
ACS's remaining contentions are not properly before this Court.
Accordingly, the Family Court's finding that the mother neglected the child is not supported by the record.
IANNACCI, J.P., WOOTEN, DOWLING and WAN, JJ., concur.