Opinion
17179 Dkt. Nos. NN-01492/21, NN-01514/21 Case No. 2022-02585
01-26-2023
In the MATTER OF EJ W. and Another, Children Under Eighteen Years of Age, etc., Leroy E. W., Jr., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Larry S. Bachner, New York, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child EJ W.
Larry S. Bachner, New York, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child EJ W.
Friedman, J.P., Moulton, Kennedy, Pitt–Burke, JJ.
Order, Family Court, New York County (Valerie A. Pels, J.), entered on or about June 6, 2022, which, after a fact-finding hearing, determined that respondent father neglected EJ and derivatively neglected Ericka, unanimously affirmed, without costs.
A preponderance of the evidence supports the court's finding that the father neglected EJ by inflicting excessive corporal punishment and misusing alcohol to the extent he lost self-control of his actions (see Family Ct Act §§ 1012[f][i][B] ; 1046[b][i]). The credited evidence shows that the father struck EJ and pushed him to the floor, causing visible scratches to his neck, chest, and right hand, after EJ refused to allow the father to drive him home because the father had consumed alcohol and appeared intoxicated (see Matter of Ena S.Y. [Martha R.Y.—Antonio S.], 140 A.D.3d 778, 780, 34 N.Y.S.3d 99 [2d Dept. 2016] ; Matter of Aniya C. [Michelle C.], 99 A.D.3d 478, 479, 952 N.Y.S.2d 127 [1st Dept. 2012] ). The evidence furthers shows that, after EJ returned home to his mother, the father went to the mother's home, banged on the door, and threatened to harm EJ, the mother, and the mother's boyfriend for approximately 40 minutes until the mother called the police (see Nasiim W. v. Keala M., 88 A.D.3d 452, 453, 931 N.Y.S.2d 4 [1st Dept. 2011] ). That EJ's injuries were the result of a single incident 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] ; Matter of Alyssa–Marie D. [Richard Luke D.], 171 A.D.3d 493, 494, 95 N.Y.S.3d 806 [1st Dept. 2019] ). The finding of derivative neglect as to Ericka was supported by evidence of her presence in the room during the altercation between EJ and the father (see Matter of Tyson T. [Latoyer T.], 146 A.D.3d 669, 670, 45 N.Y.S.3d 459 [1st Dept. 2017] ).
The father's remaining arguments are unpreserved and, in any event, unavailing.