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In re Tyneshia B.

Supreme Court of New York, First Department

September 24, 2013

In re Diamond Tyneshia B., A Dependent Child Under the Age of Eighteen Years, etc., and Aisha K., Respondent-Appellant, Daniel B., Respondent, Administration for Children Services, Petitioner-Respondent.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the child.

Friedman, J.P., Freedman, Richter, Feinman, Gische, JJ.

Order of fact-finding, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about April 19, 2012, which, to the extent appealed from, following a hearing, found that respondent-appellant mother had neglected the subject child, unanimously affirmed, without costs.

The finding of neglect is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The record shows that there was an extensive history of domestic violence between the mother and father, including an incident in which the father broke down a door and hit the mother in front of the child, causing the child to tell the father to "stop" (Matter of Jeaniya W. [Jean W.], 96 A.D.3d 622 [1st Dept 2012]). Further, there is unrefuted evidence that the mother repeatedly exposed the child to the risk of witnessing such violence by allowing the father to either visit or reside with them, despite the existence of an order of protection against him. The child's out-of-court statements about the incident she witnessed were corroborated by the mother's out-of-court statements and a domestic incident report (see Family Court Act § 1046[a][vi]). The mother waived her argument that the Family Court improperly considered the domestic incident reports, since she failed to timely object to the admission of the reports (see Matter of Dyandria D., 22 A.D.3d 354, 354 [1st Dept 2005], lv denied 6 N.Y.3d 704 [2006]).

The Family Court properly denied the mother's request for an adjournment to call the father as a witness.


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