Opinion
Nos. 2021-04169 2021-04170 Docket No. N-25184-19
10-05-2022
In the Matter of Jadeliz M. Q. (Anonymous). Administration for Children's Services, respondent; and Steven Q. (Anonymous), appellant.
Michael E. Lipson, Jericho, NY, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis and Jonathan Schoepp-Wong of counsel), for respondent. Twyla Carter, New York, NY (Dawne A. Mitchell and Judith Stern of counsel), attorney for the child.
Michael E. Lipson, Jericho, NY, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis and Jonathan Schoepp-Wong of counsel), for respondent.
Twyla Carter, New York, NY (Dawne A. Mitchell and Judith Stern of counsel), attorney for the child.
BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 10, the father appeals from (1) an order of the Family Court, Kings County (Erik S. Pitchal, J.), dated May 21, 2021, and (2) an order of fact-finding of the same court, also dated May 21, 2021. The order, insofar as appealed from, granted that branch of the petitioner's motion which was for summary judgment finding that the father neglected the subject child. The order of fact-finding, insofar as appealed from, upon the order, found that the father neglected the subject child.
ORDERED that the order and the order of fact-finding are affirmed insofar as appealed from, without costs or disbursements.
In December 2018, the father was arrested and charged with various acts of domestic violence allegedly committed against the mother of the subject child. Subsequently, the Administration for Children's Services (hereinafter ACS) commenced this child protective proceeding against the father, alleging, inter alia, that he choked the mother in the child's presence.
In December 2019, the father was convicted, after a nonjury trial, of criminal obstruction of breathing, endangering the welfare of a child, attempted assault in the third degree, menacing in the third degree, harassment in the second degree, and two counts of criminal contempt in the second degree. Thereafter, ACS moved, inter alia, for summary judgment finding that the father neglected the child. In an order dated May 21, 2021, the Family Court, inter alia, granted that branch of the motion. In an order of fact-finding, also dated May 21, 2021, the court, among other things, found that the father neglected the child. The father appeals.
"'A finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence'" (Matter of Ariella S. [Krystal C.], 89 A.D.3d 1092, 1093, quoting Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1026). Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding (see Matter of Jihad H. [Fawaz H.], 151 A.D.3d 1063, 1064; Matter of Sapphire G. [Samarj L.G.], 136 A.D.3d 687, 687).
The Family Court properly granted that branch of ACS's motion which was for summary judgment finding that the father neglected the child. ACS met its prima facie burden of demonstrating that the doctrine of collateral estoppel is applicable (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 N.Y.2d 178, 182; Matter of Ajay P., 60 A.D.3d 681, 683). A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 N.Y.2d at 182-183; Matter of Ajay P., 60 A.D.3d at 683, Matter of Doe, 47 A.D.3d 283, 285; Matter of Diana N., 34 A.D.3d 1058, 1059). In opposition, the father failed to raise a triable issue of fact.
The father's remaining contentions are either not properly before this Court (see Matter of Leo A.G.-H.B. [Natalie G.], 181 A.D.3d 599, 601) or without merit.
Accordingly, the Family Court properly found that the father neglected the child (see Matter of Cerise M. [Michael M.], 177 A.D.3d 743, 745).
BARROS, J.P., MILLER, GENOVESI and VOUTSINAS, JJ., concur.