Opinion
214-, 214A Dkt. Nos. NN34841-43/18 Case No. 2021–01939
05-09-2023
In the MATTER OF J.A.W., and Others, Children Under Eighteen Years of Age, etc., Lance W., Respondent–Appellant, v. S.J., Respondent, Administration for Children's Services, Respondent–Respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jonathan Popolow of counsel), for respondent. Larry S. Bachner, New York, for J.A.W., attorney for the child. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), for J. K. and J. L. W., attorney for the children.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jonathan Popolow of counsel), for respondent.
Larry S. Bachner, New York, for J.A.W., attorney for the child.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), for J. K. and J. L. W., attorney for the children.
Webber, J.P., Kern, Friedman, Mendez, Shulman, JJ.
Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about May 17, 2021, to the extent it brings up for review an amended fact-finding order, same court and Justice, entered on or about May 20, 2021, which found that respondent father neglected the three subject children, unanimously affirmed, without costs. Appeal from amended fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The finding of neglect is supported by a preponderance of the evidence establishing that the father's acts of domestic violence posed an imminent danger to the children's physical, mental or emotional well-being (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i]).
The court properly credited the testimony of the agency's protective specialist over the mother and father's inconsistent accounts of the incident in making its findings, and there is no basis to disturb the court's credibility determinations (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 Madison H. [Demezz H.—Tabitha A.] , 99 A.D.3d 475, 476, 952 N.Y.S.2d 124 [1st Dept. 2012] ). The protective specialist testified that the children disclosed seeing the father cause the mother to fall to the floor, then sit on the mother, breaking her leg, and the mother being taken from the apartment by ambulance. These out-of-court statements by the children cross-corroborated each other and, thus, were sufficient to support a neglect finding (see Matter of H. [Ronald H.], 193 A.D.3d 419, 419, 143 N.Y.S.3d 666 [1st Dept. 2021] ).
The evidence also shows that the children's emotional and mental conditions were impaired or in imminent danger of being impaired by their exposure to an act of domestic violence committed by the father against the mother (see Matter of Athena M. [Manuel M.T.], 190 A.D.3d 644, 644–645, 136 N.Y.S.3d 740 [1st Dept. 2021] ). Impairment or imminent danger of impairment may be inferred by the fact that the incident occurred either in the presence of or in close proximity to the children (see Matter of Esther N. [Onyebuchi N.], 206 A.D.3d 564, 565, 171 N.Y.S.3d 96 [1st Dept. 2022] ; Matter of Mateo M.S.J. [Daniel M.A.], 184 A.D.3d 415, 416, 124 N.Y.S.3d 688 [1st Dept. 2020] ) and that the children were aware of and emotionally impacted by the domestic violence they witnessed in the family's studio apartment, to the extent that one of them "completely shutdown" shortly after the incident (see Matter of Jermaine K.R. [Jermaine R.], 176 A.D.3d 648, 649, 110 N.Y.S.3d 678 [1st Dept. 2019] ).
We have considered the father's remaining arguments and find them unavailing.