Opinion
1223-, 1223A Index No. N4269/20 Case No. 2022–03772
12-14-2023
In the MATTER OF GELANI M., a Child Under the Age of Eighteen Years, etc., Paul M., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Bruce A. Young, Edgewater, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), Attorney for the child.
Bruce A. Young, Edgewater, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), Attorney for the child.
Manzanet–Daniels, J.P., Oing, Moulton, Shulman, Rosado, JJ.
Order of disposition, Family Court, Bronx County (Ashley B. Black, J.), entered on or about August 9, 2022, which, insofar as appealed from as limited by the briefs, released the subject child to the nonrespondent mother's custody and, among other things, ordered respondent father to complete parenting skills and other services, upon a fact-finding determination that the father neglected the subject child, unanimously affirmed, without costs. Appeal from order of fact-finding, same court and justice, entered on or about March 7, 2022, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
A preponderance of the evidence supports Family Court's determination that the father neglected the subject child ( Family Ct Act § 1012[f][i][B] ). A finding of neglect may be based on a single incident where the parent's judgment was strongly impaired and the child exposed to a risk of substantial harm (see Matter of Allyera E. [Alando E.], 132 A.D.3d 472, 473, 17 N.Y.S.3d 634 [1st Dept. 2015], lv denied 26 N.Y.3d 913, 2015 WL 8816675 [2015] ; Matter of Madison M. [Nathan M.], 123 A.D.3d 616, 616, 999 N.Y.S.2d 70 [1st Dept. 2014] ). Here the record reflects two such incidents.
The first incident occurred when the subject child was about 15 months old. On February 12, 2020, the father left the child unattended in the lobby of a friend's apartment building. A building resident called the police. The police arrived and waited for the father at the building lobby for 45 minutes. When the father did not appear, the police removed the child from the premises and contacted Administration for Children's Services. Family Court properly found this to constitute neglect by the father (see Matter of Jesiel C.V. [Rosalie V.], 189 A.D.3d 568, 568, 133 N.Y.S.3d 810 [1st Dept. 2020], lv denied 2021 N.Y. Slip Op. 63571, 2021 WL 1134490 [2021] ; Matter of Malachi H. [Dequisa H.], 125 A.D.3d 478, 2 N.Y.S.3d 482 [1st Dept. 2015] ).
The second incident occurred on November 9, 2020, when the father and a friend physically assaulted the mother's boyfriend, and threatened the boyfriend with a knife, while the mother, the boyfriend, and the child were waiting at a bus stop. The assault unfolded as the child was in his stroller 10–15 feet away. Family Court properly found these acts of violence in the child's presence to have constituted neglect on the father's part. ( Matter of M.D. [Moustapha D.], 217 A.D.3d 541, 541, 192 N.Y.S.3d 21 [1st Dept. 2023] ; Matter of O'Ryan Elizah H. [Kairo E.], 171 A.D.3d 429, 95 N.Y.S.3d 520 [1st Dept. 2019] ).
The father's assertions on appeal are unavailing. With respect to the February 12, 2020, incident, the father avers that he left the child with a woman whom he knew to be a responsible caregiver, but his argument is unsupported by any evidence. As to the November 9, 2020, incident, he offers no support for his conclusory assertion that the child was "safely" in his stroller, or was somehow unaffected because the boyfriend was not his parent. There is no reason to disturb Family Court's credibility determinations (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; see also Matter of Destiny R. [Rene G.], 212 A.D.3d 629, 630, 181 N.Y.S.3d 329 [2d Dept. 2023] ), and his claim that these incidents cannot evidence neglect because the child suffered no physical harm is also unavailing (see Family Ct Act § 1012[f][i] ; Matter of O'Ryan Elizah H., 171 A.D.3d at 429, 95 N.Y.S.3d 520 ; Matter of Macin D. [Miguel D.], 148 A.D.3d 572, 573, 49 N.Y.S.3d 138 [1st Dept. 2017] ). Family Court properly drew a negative inference from the father's failure to testify (see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ; Matter of Daniela P.C. [Maria C.A.], 166 A.D.3d 423, 87 N.Y.S.3d 150 [1st Dept. 2018] ; Matter of Jeremy M. [Roque A.M.], 145 A.D.3d 637, 42 N.Y.S.3d 807 [1st Dept. 2016] ). In any event, Family Court held it would have reached the same determinations as to disposition without the inference.
The father's arguments concerning Family Court's granting leave to ACS to amend the petition are not properly before us, as such leave was granted by order dated January 13, 2021, from which he did not appeal (see e.g. Valley Natl. Bank v. Gurba, 149 A.D.3d 412, 413, 51 N.Y.S.3d 65 [1st Dept. 2017] ). The arguments are, in any event, unavailing, as he was not prejudiced by the amendment.
The court "providently directed the father to participate in services addressing the issues that resulted in the neglect finding" ( Matter of Adam T. [Artur T.], 186 A.D.3d 1179, 1180, 131 N.Y.S.3d 15 [1st Dept. 2020] ). He offers no support for his claim that the court should have released the child to both parents since they can co-parent safely.
We have considered the father's remaining arguments and find them unavailing.