Opinion
5334
01-02-2018
IN RE TYJAA E. and Another, Dependent Children Under Eighteen Years of Age, etc., Kareem McC., Respondent–Appellant, v. Crystal E., Respondent, The Administration for Children's Services, Petitioner–Respondent.
Bruce A. Young, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for respondent. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), attorney for the children.
Bruce A. Young, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Carolyn Walther of counsel), for respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), attorney for the children.
Manzanet–Daniels, J.P., Mazzarelli, Andrias, Gesmer, Oing, JJ.
Order of fact-finding and disposition (one paper) of the Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about January 18, 2017, insofar as it determined, after a hearing, that respondent-father neglected one of the subject children and derivatively neglected the other, unanimously affirmed, without costs.
The findings of neglect are supported by a preponderance of the competent evidence (see Family Ct Act § 1046[b][i], [iii] ; see also Matter of Daphne G., 308 A.D.2d 132, 135, 763 N.Y.S.2d 583 [1st Dept. 2003] ). The record shows that the older child was subject to actual or imminent danger of injury or impairment of her emotional and mental condition from exposure to repeated incidents of domestic violence occurring in respondents' small shelter apartment, including the precipitating incident, during which the father choked, kicked and stomped on the mother's stomach, while she was pregnant with the younger child, in close proximity to the older child (see Matter of Carmine G. [Franklin G.], 115 A.D.3d 594, 982 N.Y.S.2d 318 [1st Dept. 2014] ; Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 404–405, 974 N.Y.S.2d 369 [1st Dept. 2013] ). Since the conduct that formed the basis for the finding of neglect as to the older child was proximate in time to the younger child's birth, it can reasonably be concluded that the condition still existed (see Matter of Jamarra S. [Jessica S.], 85 A.D.3d 803, 925 N.Y.S.2d 531 [2d Dept. 2011] [citations omitted] ).
The medical records which included statements regarding domestic violence were properly admitted (see People v. Ortega, 15 N.Y.3d 610, 619, 917 N.Y.S.2d 1, 942 N.E.2d 210 [2010] ), and accorded the proper weight (see Matter of Miguel S., 140 A.D.2d 202, 528 N.Y.S.2d 55 [1st Dept. 1988] ). Further, the Family Court's credibility determinations are entitled to deference on appeal and are supported by the record on appeal (see Matter of Irene O., 38 N.Y.2d 776, 777–778, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of Aaron C. [Grace C.], 105 A.D.3d 548, 963 N.Y.S.2d 208 [1st Dept. 2013] ).
Contrary to the father's arguments, the court's rulings were proper, and the denial of his general requests for adjournments were a provident exercise of the court's discretion (see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ; Matter of Anthony M., 63 N.Y.2d 270, 283–284, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ; CPLR 4011 ).
The father was afforded due process and was not deprived of the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). The father's contention that he did not have sufficient opportunity to confer with trial counsel is unpreserved (see People v. Garay, 25 N.Y.3d 62, 67, 7 N.Y.S.3d 254, 30 N.E.3d 145 [2015], cert denied ––– U.S. ––––, 136 S.Ct. 501, 193 L.Ed.2d 395 [2015] ), and unsupported. The court's rulings limiting the scope of questioning at trial was likewise a provident exercise of discretion. The court properly proceeded to disposition in the absence of objection (see Matter of Kasey Marie M., 292 A.D.2d 190, 738 N.Y.S.2d 346 [1st Dept. 2002] ).