Opinion
938 Docket No. O-04933-21 Case No. 2023-01022
10-31-2023
In the Matter of ELIZABETH F., Petitioner–Respondent, v. WILFREDO F., Respondent–Appellant.
Larry S. Bachner, New York, for appellant. Geoffrey P. Berman, Larchmont, for respondent. Janet Neustaetter, The Children's Law Center, Brooklyn (Louise Feld of counsel), attorney for the children.
Larry S. Bachner, New York, for appellant.
Geoffrey P. Berman, Larchmont, for respondent.
Janet Neustaetter, The Children's Law Center, Brooklyn (Louise Feld of counsel), attorney for the children.
Kern, J.P., Friedman, Kennedy, Pitt–Burke, JJ.
Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about January 31, 2023, which, after a fact-finding hearing, directed that respondent father stay away from petitioner mother and the subject children for a period of five years, subject to subsequent orders of visitation, unanimously affirmed, without costs.
Initially, the order appealed was not entered upon the father's default. Although the father failed to appear for the hearing on January 31, 2023, on that date, the court merely issued a determination, which was based on the testimony and evidence presented by both parties over the course of the trial (see Matter of Amiracle R. [Elizabeth H.], 169 A.D.3d 1453, 1453, 92 N.Y.S.3d 820 [4th Dept. 2019] ). Accordingly, the order is appealable (cf. Matter of Iyana W. [Shamark W.], 124 A.D.3d 418, 418, 1 N.Y.S.3d 48 [1st Dept. 2015] ).
Although the court did not specify the family offenses that it found the father to have committed, a remand of the matter is not required because "the record is sufficiently complete to allow this Court to make an independent factual review and draw its own conclusions" ( Matter of Charlene R. v. Malachi R., 151 A.D.3d 482, 482, 53 N.Y.S.3d 530 [1st Dept. 2017] [internal quotation marks omitted]). Based on our review of the record, we find that a preponderance of the evidence adduced at the fact-finding hearing established that the father's actions of shoving the mother in the stomach while she was six months pregnant, grabbing her by the neck, strangling her to the point of unconsciousness, lifting her off the ground and slamming her body on the floor, and hitting her on the back with a bottle constituted the family offenses of harassment in the second degree (see Matter of Giovanni De M. v. Nick W., 200 A.D.3d 517, 518, 155 N.Y.S.3d 312 [1st Dept. 2021] ), assault in the third degree (see Matter of Genesis E.R. v. Jarel E.R., 190 A.D.3d 504, 135 N.Y.S.3d 826 [1st Dept. 2021] ), criminal obstruction of breathing or blood circulation (see Matter of Kenrick C., 143 A.D.3d 600, 601, 40 N.Y.S.3d 64 [1st Dept. 2016] ), and strangulation in the second degree (see Matter of Nicole W. v. Louis T., 190 A.D.3d 510 510, 135 N.Y.S.3d 815 [1st Dept. 2021] ).The court's crediting of the mother's testimony is entitled to deference, and we perceive no basis to disturb the court's credibility determinations (see Matter of Judith L.C. v. Lawrence Y., 179 A.D.3d 616, 616, 118 N.Y.S.3d 573 [1st Dept. 2020], lv denied 35 N.Y.3d 911, 2020 WL 5047416 [2020] ).
The father's argument that the children should not have been included in the order of protection is raised for the first time on appeal and unpreserved (see Matter of Ikram B. v. Abdelkader B.-B., 215 A.D.3d 468, 469, 185 N.Y.S.3d 681 [1st Dept. 2023] ). In any event, the inclusion of the children was warranted because multiple family offenses occurred in their presence (see Matter of Marta M. v. Gopal M., 212 A.D.3d 524, 526, 181 N.Y.S.3d 562 [1st Dept. 2023] ). The father's contention that the children received ineffective assistance of counsel is also unpreserved and, in any event, he failed to demonstrate the requisite extraordinary circumstances to support the claim (see Matter of Diane T. v. Shawn N., 147 A.D.3d 463, 463, 47 N.Y.S.3d 16 [1st Dept. 2017], lv denied 29 N.Y.3d 986, 53 N.Y.S.3d 252, 75 N.E.3d 670 [2017] ).
Finally, a five-year order of protection was warranted, given the aggravating circumstances of the father having caused the mother physical injuries on multiple occasions, committed acts of domestic violence in the presence of the parties’ children, and violated prior orders of protection against him (see Family Ct Act §§ 842 ; 827[a][vii]; Matter of Jaynie S. v. Gaetano D., 134 A.D.3d 473, 474, 22 N.Y.S.3d 12 [1st Dept. 2015], lv denied 26 N.Y.3d 917, 2016 WL 531611 [2016] ; Matter of Coumba F. v. Mamdou D., 102 A.D.3d 634, 634–635, 959 N.Y.S.2d 70 [1st Dept. 2013] ).