In the Matter of John M. M. (Anonymous). Administration for Children's Services, appellant; Michael M. (Anonymous), respondent. Docket No. N-24216-15
- February 26, 2018
Zachary W. Carter, Corporation Counsel, New York, NY (Scott
Shorr, Richard Dearing, Kathy Chang Park, and Jessica Miller
of counsel), for appellant.
A. Parazzelli, Floral Park, NY, for respondent.
Seymour W. James, Jr., New York, NY (Dawne A. Mitchell and
Susan Clement of counsel), attorney for the child.
D. SCHEINKMAN, P.J. JEFFREY A. COHEN COLLEEN D. DUFFY ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
by the petitioner from an order of the Family Court, Queens
County (Emily Ruben, J.), dated March 7, 2017. The order,
after a fact-finding hearing, and upon a finding that the
petitioner failed to establish, prima facie, that the father
neglected the subject child, granted the father's motion
to dismiss the petition and dismissed the petition.
that the order is reversed, on the law, without costs or
disbursements, the the father's motion to dismiss the
petition is denied, the petition is reinstated, a finding is
made that the petitioner established, prima facie, that
Michael M. neglected the subject child, and the matter is
remitted to the Family Court, Queens County, for a continued
fact-finding hearing where Michael M. can present his case,
if he be so advised, and a new determination thereafter.
petitioner commenced this proceeding pursuant to Family Court
Act article 10, alleging that Michael M. (hereinafter the
father) neglected the subject child by committing acts of
domestic violence against the child's mother in the
presence of the child. After the close of the
petitioner's case, the Family Court granted the
father's motion to dismiss the petition for failure to
establish a prima facie case and dismissed the petition. The
establish neglect, [a] petitioner must demonstrate, by a
preponderance of the evidence, (1) that the child's
physical, mental or emotional condition has been impaired or
is in imminent danger of becoming impaired, and (2) that the
actual or threatened harm to the child is due to the failure
of the parent or caretaker to exercise a minimum degree of
care in providing the child with proper supervision or
guardianship'' (Matter of Chaim R. [Keturah Ponce
R.], 94 A.D.3d 1127, 1130; see Family Ct Act
§§ 1012[f][i][B]; 1046[b][i]; Nicholson v
Scoppetta, 3 N.Y.3d 357, 368). Although the exposure of
a child to domestic violence between parents may form the
basis for a finding of neglect (see e.g. Matter of Jihad
H. [Fawaz H.], 151 A.D.3d 1063, 1064; Matter of
Moises G. [Luis G.], 135 A.D.3d 527; Matter of
Andrew Y, 44 A.D.3d 1063, 1064), "exposing a child
to domestic violence is not presumptively neglectful. Not
every child exposed to domestic violence is at risk of
impairment" (Nicholson v Scoppetta, 3 N.Y.3d at
375 [emphasis omitted]; see Matter of Kiana M.-M. [Robert
M], 123 A.D.3d 720, 721).
to the Family Court's determination, viewing the evidence
in the light most favorable to the petitioner and affording
it the benefit of every inference which could be reasonably
drawn from the evidence (see Matter of Jaivon J.
[Patricia D.],148 A.D.3d 890, 892), the petitioner
presented a prima facie case of neglect against the father.
At the fact-finding hearing, the petitioner presented, among
other things, the hearsay testimony of a police officer who
testified that the mother described the father throwing an
object at her head, choking her, and throwing her to the
ground at the side of their bed, causing her to lose
consciousness. Certified hospital records that the petitioner
also introduced into evidence generally corroborated the
mother's statements, including her statement that the
child, who was then 11 months old, was lying on the
parents' bed throughout the assault. Accordingly, the
court erred in granting the father's motion to dismiss
the petition (see Matter of Isabella S. [Robert T.],
154 A.D.3d 606, 606-607; Matter of Jihad H. [Fawaz
H.], 151 A.D.3d at 1064; Matter of Cody W. [Ronald
L.],148 A.D.3d 914, 916; Matter of Tamara D.
[Randolph P.],120 A.D.3d 813, 813; Matter of Kiara
C. [David C.], 85 A.D.3d 1025, 1026). Since the court
terminated the proceeding after the close of the