Opinion
510 Dkt. No. N32908/18 Case No. 2020–04954
06-22-2023
In the MATTER OF YMANI C. D., a Child Under Eighteen Years of Age, etc., Peter J. D., Respondent–Appellant, v. Kendra D. M., Respondent, Administration for Children's Services, Petitioner–Respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent. Janet Neusteatter, The Children's Law Center, Brooklyn (Louise Feld of counsel), attorney for the child.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Janet Neusteatter, The Children's Law Center, Brooklyn (Louise Feld of counsel), attorney for the child.
Renwick, P.J., Kennedy, Scarpulla, Shulman, Higgitt, JJ.
Order of fact-finding, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about December 5, 2019, which, after a hearing, determined that respondent father neglected the subject child, unanimously affirmed, without costs. The finding of neglect was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B], 1046[b][i] ; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985] ). There is no basis to disturb the court's credibility determinations (see Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept. 2010], lv denied 16 N.Y.3d 705, 2011 WL 589734 [2011] ). The mother's testimony and the agency's progress notes showed that the father engaged in a physical altercation with the mother while in the presence of the child, who was aware of what was transpiring (see Matter of J.R.M.-C. [Antonio M.], 176 A.D.3d 623, 624, 110 N.Y.S.3d 676 [1st Dept. 2019] ; Matter of Jamya C. [Jermaine F.], 165 A.D.3d 410, 410, 82 N.Y.S.3d 715 [1st Dept. 2018] ). The child's out-of-court statements that she saw her parents fighting, and that the parents were fighting over her, were corroborated by the progress notes and the testimonial evidence ( Matter of Zamir D. [Peter J.D.], 201 A.D.3d 403, 403, 156 N.Y.S.3d 724 [1st Dept. 2022] ).
Contrary to the father's contention, the record supports a finding that the child's emotional and mental condition was either impaired or certainly in imminent danger of being impaired by her witnessing her parents engage in the physical altercation. The mother testified that the child was crying during the altercation, and the progress notes reflect that the caseworker had to calm the child down each time she tried to discuss the incident with the child (see Matter of Nia J. [Janet Jordan P.], 107 A.D.3d 566, 567, 968 N.Y.S.2d 446 [1st Dept. 2013] ).