Opinion
494 Dkt Nos. NN-07192-8/21 Case No. 2022–03425
06-20-2023
In the Matter of M.D., and Others, Children Under the Age of Eighteen Years Alleged to be Neglected by Moustapha D., Respondent–Appellant, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Petitioner–Respondent.
Steven P. Forbes, Huntington, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Benjamin H. Pollak of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the children.
Steven P. Forbes, Huntington, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Benjamin H. Pollak of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the children.
Webber, J.P., Oing, Gesmer, Gonza´lez, Pitt–Burke, JJ.
Order of disposition, Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about May 23, 2022, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about May 9, 2022, which found that respondent father neglected the subject children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The finding of neglect was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i]). The testimony of the nonrespondent mother and ACS caseworker at the fact-finding hearing demonstrates that in July 2021, the father neglected the subject children by throwing a chair at the mother, injuring her left arm, and chasing the mother, who was crying, through the family's apartment, in close proximity to the children, who were in their room (see Matter of Zelda McM. [Patrick L.-O. McM. ], 154 A.D.3d 573, 573–574, 62 N.Y.S.3d 349 [1st Dept. 2017] ). The father then pulled a power cord from the wall and attempted to whip the mother, instead striking one of the children on the forehead as he was leaving the children's room, leaving a red mark on the child's forehead (see Matter of J.R.M.-C. [Antonio M.], 176 A.D.3d 623, 624, 110 N.Y.S.3d 676 [1st Dept. 2019] ; Matter of Mariya M. [Joseph M.], 147 A.D.3d 1062, 1063, 46 N.Y.S.3d 919 [2d Dept. 2017] ).
Furthermore, the court properly credited the mother's testimony in making its findings, and there is no basis to disturb the court's credibility determinations (see Matter of Irene O., 38 N.Y.2d 776, 778, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of Cerise M. [Michael M.], 177 A.D.3d 743, 745, 112 N.Y.S.3d 759 [2d Dept. 2019] ). The children's out-of-court statements were corroborated by the mother's testimony as well as their own cross-corroborating statements (see Matter of Jakob Z. [Matthew Z.-Mare AA.], 156 A.D.3d 1170, 1172, 66 N.Y.S.3d 744 [3d Dept. 2017] ; Matter of Zamir D. [Peter J.D.], 201 A.D.3d 403, 403, 156 N.Y.S.3d 724 [1st Dept. 2022] ).
The father waived his challenge to the court's taking judicial notice of a prior 2014 neglect finding against him (see Matter of Jeffrey D., 41 A.D.3d 845, 846–847, 838 N.Y.S.2d 182 [2d Dept. 2007], lv denied 9 N.Y.3d 818, 852 N.Y.S.2d 14, 881 N.E.2d 1201 [2008] ; see also Matter of Stephauan P., 126 A.D.3d 639, 4 N.Y.S.3d 493 [1st Dept. 2015], lv denied 25 N.Y.3d 912, 2015 WL 3952190 [2015] ). Were we to review this issue, we would find that the court properly took judicial notice of the prior neglect adjudication, which was based on his infliction of domestic violence against the mother in the children's presence (see Matter of Arique D. [Elizabeth A.], 111 A.D.3d 625, 627, 975 N.Y.S.2d 82 [2d Dept. 2013] ; Matter of Rodney W. v. Josephine F., 126 A.D.3d 605, 6 N.Y.S.3d 239 [1st Dept. 2015], lv dismissed 25 N.Y.3d 1187, 16 N.Y.S.3d 46, 37 N.E.3d 103 [2015] ).