Opinion
2012-10-9
In re Madison H., A Dependent Child Under Eighteen Years of Age, etc., Demezz H., Respondent–Appellant, Tabitha A., Respondent, Administration for Children's Services, Petitioner–Respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Graham Morrison of counsel), for respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Graham Morrison of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the child.
TOM, J.P., MAZZARELLI, CATTERSON, RENWICK, DeGRASSE, JJ.
Second amended order of fact-finding and disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about November 29, 2011, which, to the extent appealed from as limited by the briefs, following a fact-finding hearing, determined that respondent father had neglected the subject child, unanimously affirmed, without costs.
The finding of neglect was supported by a preponderance of the evidence ( seeFamily Ct. Act §§ 1012[f]; 1046[b] ). The evidence, including the testimony of the mother and medical experts, shows that the child suffered an injury that would not ordinarily occur absent an act or omission of a caretaker, and that the father was the caretaker of the child at the time the injury occurred ( seeFamily Ct. Act § 1046[a][ii] ). The court cited the father's demeanor and disruptive courtroom behavior, and refused to credit the father's denial that he had abused the child. This credibility finding is entitled to great weight and we decline the invitation to find the contrary ( see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ).
Family Court, at the conclusion of the fact-finding hearing, properly amended the petition to conform to the proof of domestic violence. The record shows that the father had ample notice that domestic violence was at issue and an ample opportunityto cross-examine the mother about her claims ( seeFamily Ct. Act § 1051[b]; Matter of Carmen L., 37 A.D.3d 468, 828 N.Y.S.2d 898 [2d Dept.2007], lv. denied8 N.Y.3d 814, 838 N.Y.S.2d 840, 841, 870 N.E.2d 160, 161 [2007] ). Moreover, the mother's testimony that the father had swung the child in his arm during an argument with the mother, was sufficient additional proof that the child's physical, mental, or emotional condition was in imminent danger of impairment as a result of the father's domestic violence ( seeFamily Ct. Act § 1012[f][i]; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 1027–1028, 926 N.Y.S.2d 119 [2d Dept.2011] ).