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In Re Madison H.

New York Supreme Court Appellate Division, First Department


October 9, 2012

IN RE MADISON H., A DEPENDENT CHILD UNDER EIGHTEEN YEARS OF AGE, ETC., AND DEMEZZ H., RESPONDENT-APPELLANT, TABITHA A., RESPONDENT, ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.

Matter of Matter of Madison H. (Demezz H.--Tabitha A.)

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2012

Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.

Second amended order of fact-finding and disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about November 29, 2011, which, to the extent appealed from as limited by the briefs, following a fact-finding hearing, determined that respondent father had neglected the subject child, unanimously affirmed, without costs.

The finding of neglect was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f]; 1046[b]). The evidence, including the testimony of the mother and medical experts, shows that the child suffered an injury that would not ordinarily occur absent an act or omission of a caretaker, and that the father was the caretaker of the child at the time the injury occurred (see Family Ct Act § 1046[a][ii]). The court cited the father's demeanor and disruptive courtroom behavior, and refused to credit the father's denial that he had abused the child. This credibility finding is entitled to great weight and we decline the invitation to find the contrary (see Matter of Irene O., 38 NY2d 776, 777 [1975]).

Family Court, at the conclusion of the fact-finding hearing, properly amended the petition to conform to the proof of domestic violence. The record shows that the father had ample notice that domestic violence was at issue and an ample opportunity to cross-examine the mother about her claims (see Family Ct Act § 1051[b]; Matter of Carmen L., 37 AD3d 468 [2d Dept 2007], lv denied 8 NY3d 814 [2007]). Moreover, the mother's testimony that the father had swung the child in his arm during an argument with the mother, was sufficient additional proof that the child's physical, mental, or emotional condition was in imminent danger of impairment as a result of the father's domestic violence (see Family Ct Act § 1012[f][i]; Matter of Ndeye D. [Benjamin D.], 85 AD3d 1026, 1027-1028 [2d Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2012

CLERK

20121009

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