Opinion
974 Dkt. No. NN-05231/22 Case No. 2022–05333
11-09-2023
In the MATTER OF MELANIE J.A., a Child Under Eighteen Years of Age, etc., Ramon J., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Daniel X. Robinson, New York, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondent. Dawne Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Daniel X. Robinson, New York, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondent.
Dawne Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Webber, J.P., Friedman, Gonza´lez, Kennedy, O'Neill Levy, JJ.
Order of fact-finding and disposition (one paper) of the Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about October 26, 2022, which, after a hearing, determined that respondent father neglected the subject child, unanimously affirmed, without costs.
The finding of neglect was proven by a preponderance of the evidence (see Family Court Act § 1046[b][i] ). The testimony established that the child's emotional and mental condition was impaired or in imminent danger of being impaired by the child's exposure to repeated acts of domestic violence committed by the father against the mother (see Matter of Terrence B., 171 A.D.3d 463, 463, 95 N.Y.S.3d 802 [1st Dept. 2019] ). In each one of the incidents, the violence took place either in the child's presence or in close proximity to the child, thus creating a reasonable inference that the child was in imminent danger of physical impairment (see Matter of Tyjaa E. [Kareem McC.], 157 A.D.3d 420, 420, 66 N.Y.S.3d 12 [1st Dept. 2018] ; Matter of Andru G. [Jasmine C.], 156 A.D.3d 456, 457, 64 N.Y.S.3d 886 [1st Dept. 2017] ). Moreover, because the child was crying during one of the incidents, it is reasonable to infer that the child was aware of and emotionally impacted by the violence (see Matter of Jermaine K.R. [Jermaine R.], 176 A.D.3d 648, 649, 110 N.Y.S.3d 678 [1st Dept. 2019] ). The court properly credited the mother's testimony in making its findings, and there is no basis to disturb those credibility determinations (see Matter of Heily A. [Flor F—Gustavo A., 165 A.D.3d 457, 457, 85 N.Y.S.3d 52 [1st Dept. 2018] ). In addition, the father's history of alcohol misuse, including at least one occasion where he brandished a knife in front of the mother and the child while intoxicated, constituted prima facie evidence of neglect (see Family Court Act § 1046[a][iii] ; Matter of Kimora D. [Joseph C.], 176 A.D.3d 638, 640, 113 N.Y.S.3d 22 [1st Dept. 2019] ). The father never received treatment for his alcohol misuse, and lack of actual harm to the child is not sufficient to rebut the prima facie case of neglect on this basis (see id. ; Matter of Chastity O.C. [Angie O.C.], 136 A.D.3d 407, 408, 24 N.Y.S.3d 610 [1st Dept. 2016] ).