Opinion
5505
01-23-2018
IN RE KENNY J.M., A Dependent Child Under the Age of Eighteen Years etc. John M., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
John R. Eyerman, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for respondent.
John R. Eyerman, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Webber, Oing, JJ.
Order of fact-finding and disposition, Family Court, Bronx County (Valerie A. Pels, J.), entered on or about November 17, 2015, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent father neglected the subject child, unanimously affirmed, without costs.
The finding of neglect is supported by a preponderance of the evidence that the father's actions posed an imminent danger to the child's emotional and physical well-being (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i] ). The mother testified that the father assaulted her in the presence of the child, who cried and attempted to assist her, and the child's out-of-court statements also described the father attacking the mother (see Matter of Serenity H. [Tasha S.], 132 A.D.3d 508, 19 N.Y.S.3d 22 [1st Dept. 2015] ).
The father's assertion that the child was not in imminent danger of harm since he witnessed only a single incident of violence is unavailing (see Matter of Allyerra 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, 617, 999 N.Y.S.2d 70 [1st Dept. 2014] ). The record shows that when the father perpetrated the act of violence against the mother, not only did the child witness it, he became involved in the altercation. He asked his father to stop striking his mother and attempted to assist her, all to no avail, leaving him in tears, which demonstrates an imminent risk of impairment (see Matter of Tavene H. [William G], 139 A.D.3d 633, 31 N.Y.S.3d 70 [1st Dept. 2016] ; Matter of Serenity H. [Tasha S.], 132 A.D.3d at 509, 19 N.Y.S.3d 22 ). Contrary to the father's assertions, no expert testimony was needed for a showing of impairment (see Matter of Enrique V. [Jose U.V.], 68 A.D.3d 427, 888 N.Y.S.2d 747 [1st Dept. 2009] ).Furthermore, there exists no basis to disturb the court's evaluation of the evidence, including its credibility determinations (see Matter of Ilene M., 19 A.D.3d 106, 796 N.Y.S.2d 87 [1st Dept. 2005] ).