Opinion
05-21-2024
In the MATTER OF D. P„ a Child Under Eighteen Years of Age, etc., L. C., Respondent–Appellant, v. D. P., Respondent–Respondent, Administration for Children’s Services, Petitioner–Respondent.
Steven P. Forbes, Huntington, for appellant. Bruce A. Young, New York, for D. P., respondent. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for Administration for Children Services, respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the child.
Steven P. Forbes, Huntington, for appellant.
Bruce A. Young, New York, for D. P., respondent.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for Administration for Children Services, respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene Petrakopoulos of counsel), attorney for the child.
Manzanet–Daniels, J.P., Moulton, Mendez, Rosado, O’Neill Levy, JJ.
Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about October 31, 2022, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that appellant neglected the subject child, unanimously affirmed, without costs.
[1] Initially, petitioner agency’s witness properly laid a foundation for the admission of records under the business records exception to the rule against hearsay. The witness established that she was familiar with Administration for Children’s Services (ACS) record-keeping practices; that the records were kept in the course of ACS’s regular record-keeping practices; and that they were recorded on or reasonably near the time of the recorded events generally within five business days, by persons who were under a business obligation to do so accurately (see Matter of Adonis H. [Enerfry H.], 198 A.D.3d 478, 479–480, 156 N.Y.S.3d 153 [1st Dept. 2021]).
Appellant failed to preserve his argument that he was not a person legally responsible for the child within the meaning of Family Court Act § 1012(g), and we decline to review it in the interest of justice (see Matter of Jadiel M. [Naqwuan B.], 187 A.D.3d 677, 678, 131 N.Y.S.3d 551 [1st Dept. 2020]). [2] As to the merits, the finding of neglect based on domestic violence was supported by a preponderance of the evidence, and there is no basis to disturb the court’s credibility determinations (Family Court Act § 1046[b][i]; see Matter of Tammie Z., 66 N.Y.2d 1, 3–5, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985]). The caseworker testified to the child’s statement that appellant and the mother fought all the time, and that appellant was not nice to her. The child’s maternal aunt further testified that the child disclosed seeing appellant drag the mother across the floor and hit her. The child also used a toy gun to demonstrate to the aunt another incident in which appellant took a gun out of the closet and put it to the mother’s head. These out-of-court statements by the child were further corroborated by an order of protection issued in favor of the mother and child against appellant after an incident of domestic violence that took place in April 2022, approximately a month before the caseworker interviewed the child (see Matter of Emily S. [Jorge S.], 146 A.D.3d 599, 600, 44 N.Y.S.3d 743 [1st Dept. 2017]).
The evidence also showed that the child’s emotional and mental condition was impaired or in imminent danger of being impaired by exposure to acts of domestic violence committed by appellant against the mother, The child’s aunt testified that he was visibly distraught when recounting the Incidents he had witnessed, and that his behavior had changed since living with the mother and appellant in that he began to curse, threw temper tantrums, and hit his grandmother.
[3] The record further supports the finding that appellant inflicted excessive corporal punishment on the child. The child stated to his maternal aunt that appellant hit him on the back with a belt, and the aunt testified that she saw a bruise on the child’s back and that he cried out in pain when she put lotion on that spot (see Matter of Paige T. [Kodjo T.], 189 A.D.3d 563, 564, 133 N.Y.S.3d 813 [1st Dept. 2020]). Although the child’s injuries were the result of a single incident, that fact does not preclude a finding of excessive corporal punishment or neglect (see Matter of Liza F. [Bon F.], 177 A.D.3d 570, 571, 111 N.Y.S.3d 532 [1st Dept. 2019]).
Furthermore, a preponderance of the evidence supports the court’s finding that the child’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of appellant engaging in sexual activity in his presence (see Matter of Ja'Dore G. [Cannily G.], 169 A.D.3d 544, 545, 95 N.Y.S.3d 79 [1st Dept. 2019]).
[4] Family Court providently exercised its discretion in granting the agency’s request to conform the pleadings to the evidence, as appellant had ample notice of the allegations and a reasonable time to respond (Family Court Act § 1051[b]; see Matter of Enrique S. [Kelba C.S.], 134 AD.3d 576, 577, 23 N.Y.S.3d 30 [1st Dept. 2015], lv denied 27 N.Y.3d 948, 29 N.Y.S.3d 910, 49 N.E.3d 1203 [2016]; Matter of Autumn M. [Sita P.M.], 213 AD.3d 852, 853, 183 N.Y.S.3d 542 [2d Dept. 2023]).