Opinion
14375 Dkt. Nos. NN-30572/18, NN-30573/18 Case No. 2020-03045
10-14-2021
In the MATTEROF CESAR V. and Another, Children Under Eighteen Years of Age, etc., Jorge V., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Harold, Salant, Strassfield & Spielberg, White Plains (Jerold C. Rotbard of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Harold, Salant, Strassfield & Spielberg, White Plains (Jerold C. Rotbard of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Lorenzo Di Silvio of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Kapnick, J.P., Singh, Shulman, Pitt, Higgitt, JJ.
Order of fact-finding and disposition, Family Court, Bronx County (David J. Kaplan, J.), entered on or about March 3, 2020, which, to the extent appealed from, found that respondent father neglected the subject children, unanimously affirmed, without costs.
Respondent's argument that the finding of neglect is not supported by a preponderance of the evidence is unpreserved, since he failed to move to dismiss the petition on that basis. In any event, we reject it on the merits. The record shows that respondent struck the children's mother in the family home while at least one of the children was present and that, although the child did not see respondent strike the mother, he saw the mother's resulting injury (see Matter of Carmine G. [Franklin G.], 115 A.D.3d 594, 594, 982 N.Y.S.2d 318 [1st Dept. 2014] ; Matter of Noah N. [Herold N.], 184 A.D.3d 733, 734, 124 N.Y.S.3d 216 [2d Dept. 2020] ; Family Court Act 1046[b][i] ). The child's out-of-court statement that he saw the mother's nose bleeding after she and respondent had argued was corroborated by the mother's testimony (see Family Court Act § 1046[a][vi] ).
Further, the record shows that respondent engaged in a pattern of domestic violence against the mother (see Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 974 N.Y.S.2d 369 [1st Dept. 2013] ). We see no reason to disturb the court's credibility determinations. Contrary to respondent's contentions, impairment or imminent danger of impairment to the children's physical, mental, or emotional condition could be inferred from his conduct (see Matter of O'Ryan Elizah H. [Kairo E.], 171 A.D.3d 429, 95 N.Y.S.3d 520 [1st Dept. 2019] ).