Opinion
No. 2369 Docket Nos. NN-15312/22 NN-15313/22 Case No. 2023-02734
05-28-2024
In the Matter of G.B. and Another, Children Under Eighteen Years of Age Alleged to be Neglected by Gary B., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.
Steven N. Feinman, White Plains, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Susan Paulson of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Claire V. Merkine of counsel), attorney for the children.
Steven N. Feinman, White Plains, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Claire V. Merkine of counsel), attorney for the children.
Before: Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.
Order of fact-finding and disposition (one paper), Family Court, Bronx County (E. Grace Park, J.), entered on or about May 3, 2023, which, to the extent appealed from as limited by the briefs, found, after a hearing, that respondent father neglected the two subject children, unanimously modified, on the law and facts, to vacate so much of the neglect finding as is based on respondent's abuse of alcohol, and otherwise affirmed, without costs.
The finding of neglect is supported by a preponderance of the evidence insofar as it established that the father's acts of domestic violence against nonrespondent mother during the July 16, 2022 incident posed an imminent danger to the children's physical, mental, or emotional well-being (see Family Ct Act §§ 1012[e][iii]; 1046[b]; Matter of J.A.W. [Lance W.], 216 A.D.3d 480, 481 [1st Dept 2023]). The court properly credited the testimony of the agency's caseworker over the father's, as the father denied that any physical altercation occurred yet acknowledged that he "scuffl[ed]" with the mother for approximately three minutes after he grabbed her cell phone while the children were in the home. We find no basis to disturb the court's credibility determinations (see Matter of Irene O., 38 N.Y.2d 776, 777-778 [1975]; Matter of Madison H. [Demezz H.-Tabitha A.], 99 A.D.3d 475, 476 [1st Dept 2012]). The evidence also shows that the children's emotional and mental conditions were impaired or in imminent danger of being impaired by the domestic violence that the father inflicted on the mother while the children were nearby (see Matter of Esther N. [Onyebuchi N.], 206 A.D.3d 564, 565 [1st Dept 2022]; Matter of Athena M. [Manuel M.T.], 190 A.D.3d 644, 644-645 [1st Dept 2021]).
Family Court properly found the children's out-of-court statements regarding the domestic abuse reliable and corroborated. The children's statements, testified to by the caseworker, about the July 16, 2022 incident showed that they were in their bedroom when they became frightened because they heard their parents fighting and called their maternal grandmother for help. These statements by the two children cross-corroborate each other and were properly admitted into evidence (see Matter of H. [Ronald H.], 193 A.D.3d 419, 419-420 [1st Dept 2021]).
Furthermore, the one child's out-of-court statement to the caseworker that she asked her grandmother to summon the police during the July 16, 2022 incident was corroborated by an oral report transmittal (ORT). The ORT stated that an EMS worker from the New York City Fire Department reported that the police went to the family home that day after the grandmother had reported that the children "felt unsafe" because their parents were having a "heated verbal altercation which became physical." The children also described themselves to the caseworker as "scared" when they heard the altercation between their parents, demonstrating that their emotional states were impaired by the violence they had witnessed (see Matter of Heily A. [Flor F.-Gustavo A.], 165 A.D.3d 457, 457-458 [1st Dept 2018]).
We find, however, that petitioner did not satisfy its burden of proving by a preponderance of the evidence that the father neglected the children by abusing alcohol. There is no evidence that the father "lost self-control during repeated bouts of excessive drinking, and such evidence is necessary to trigger the presumption of neglect under Family Court Act § 1046(a)(iii)" (Matter of Caleah C.M.S. [Calvin S.], 174 A.D.3d 457, 457-458 [1st Dept 2019]). We reject the Family Court's finding that the children's out-of-court statements, testified to by the caseworker, cross-corroborate each other to show that the father regularly drank alcohol in excess. That finding lacks a sound and substantial basis in the record, as the caseworker never testified that the children told her they saw the father impaired (see id.).