Opinion
12379 Dkt. No. 32472/16 32473/16 Case No. 2019-05119
11-17-2020
IN RE AMIR R., and Another, Children Under Eighteen Years of Age, etc., David M., III, Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Larry S. Bachner, New York, for appellant. James E. Johnson, Corporation Counsel, New York (Julia Bedell of counsel), for respondent. Janet E. Sabel, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Larry S. Bachner, New York, for appellant.
James E. Johnson, Corporation Counsel, New York (Julia Bedell of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Friedman, J.P., Renwick, Webber, Gonza´lez, JJ.
Order of disposition, Family Court, Bronx County (Alma M. Gomez, J.), entered on or about October 1, 2019, to the extent it brings up for review a fact-finding order, same court and Justice, entered on or about August 12, 2019, which determined that respondent had neglected the subject children David M., IV and Amir R., unanimously affirmed, without costs.
Even assuming that the police records should have been admitted into evidence, unredacted, as a prior inconsistent statement for impeachment purposes, it does not change the ultimate determination here. For purposes of this child neglect case, the record shows that on December 4, 2016, respondent threatened the mother with violence, yelled at her and caused her to become so frightened as to try to pack immediately and leave, all while one or both of the children were present. In addition, on December 8, 2016, in the presence of David, respondent came to the mother's apartment when he was not authorized to be there, forced open the apartment door, and knocked her to the ground while David stood next to her. Moreover, on December 14, 2016, respondent entered the restaurant where the mother and David were, and punched her in the face knocking her to the floor while David was in his stroller. Such incidents of domestic violence amply support the court's findings of neglect (see Matter of Sincere L. [Romone L.], 183 A.D.3d 543, 122 N.Y.S.3d 891 [1st Dept. 2020] ); Matter of J.R.M.-C. [Antonio M.], 176 A.D.3d 623, 110 N.Y.S.3d 676 [1st Dept. 2019] ). Respondent offers no reason to question the mother's overall description of these episodes, and the court's determination that she was a credible witness is entitled to substantial deference on appeal (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ); Matter of AnnMarie S.W. [Raheem Sandford W.], 160 A.D.3d 548, 72 N.Y.S.3d 436 [1st Dept. 2018] ).
Respondent's argument that there was no evidence that either child was harmed, is unavailing. The argument ignores that their very proximity and exposure to the domestic violence created the imminent danger of harm to support the findings of neglect (see Matter of Bobbi B. [Bobby B.], 165 A.D.3d 587, 87 N.Y.S.3d 177 [1st Dept. 2018] ; Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 974 N.Y.S.2d 369 [1st Dept. 2013] ). Although Amir told the caseworker that he had not witnessed any altercations between his mother and respondent, he was in his bedroom with the door open during the incident of December 4 and observed his mother's bruises after the December 14
incident.
Respondent's arguments concerning his inability to impeach the caseworker with a copy of her case notes, are unavailing. While respondent was blocked from using his marked-up copy to try to impeach the caseworker during proceedings on December 6, 2017, he was permitted to resume his cross-examination of her on the next hearing date, by which time the caseworker had her notes available to refresh her recollection as to whether she observed injuries to the mother's face.
We decline to address respondent's claims concerning the attorney for the children's representation of both children, which were not raised before Family Court (see Matter of Carrieanne G., 15 A.D.3d 850, 789 N.Y.S.2d 371 [4th Dept. 2005], lv denied 4 N.Y.3d 709, 797 N.Y.S.2d 816, 830 N.E.2d 1145 [2005] ).
We have considered respondent's remaining arguments and find them unavailing.