| Matter of Kiara C. (David C.) |
| 2011 NY Slip Op 05492 [85 AD3d 1025] |
| June 21, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kiara C., an Infant. Suffolk County Department ofSocial Services, Respondent; David C., Appellant. |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Samantha N. McEachim of counsel),for respondent. Robert C. Mitchell, Central Islip, N.Y. (Diane B. Groom of counsel), attorney for thechild.
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals(1) from a decision of the Family Court, Suffolk County (Whelan, J.), dated August 3, 2010, and(2), as limited by his brief, from so much of an order of fact-finding and disposition of the samecourt dated August 19, 2010, as, upon the decision, made after fact-finding and dispositionalhearings, found that he neglected the subject child.
Ordered that the appeal from the decision dated August 3, 2010, is dismissed, without costsor disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr.Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as appealed from,without costs or disbursements.
To establish neglect pursuant to section 1012 (f) (i) (B) of the Family Court Act, thepetitioner must prove, by a preponderance of the evidence, that (1) the child's physical, mental, oremotional condition has been impaired, or is in imminent danger of becoming impaired, and (2)the actual or threatened harm to the child is due to the failure of the parent or caretaker toexercise a minimum degree of care in providing the child with proper supervision orguardianship (see Nicholson vScoppetta, 3 NY3d 357, 368 [2004]; see also Matter of Afton C. [JamesC.], 17 NY3d 1 [2011]). A minimum degree of care is the care that a reasonable and prudentparent would provide under the circumstances (see Nicholson v Scoppetta, 3 NY3d at370).
While domestic violence may be a permissible basis upon which to make a finding of [*2]neglect, "[n]ot every child exposed to domestic violence is at risk ofimpairment" (id. at 375). A finding of neglect is proper where a preponderance of theevidence establishes that the child's physical, mental, or emotional condition was impaired orwas in danger of becoming impaired by the parent's commission of an act, or acts, of domesticviolence in the child's presence (seeMatter of Elijah J. [Phillip J.], 77 AD3d 835 [2010]; Matter of Briana F. [Oswaldo F.], 69 AD3d 718 [2010]; Matter of Jordan E., 57 AD3d 539[2008]; Matter of Andrew Y., 44AD3d 1063 [2007]; Matter of JaydaD.-B., 33 AD3d 998 [2006]).
Here, a preponderance of the evidence established that the father neglected the subject childby engaging in an act of domestic violence against the mother in the child's presence that createdan imminent danger of impairing the child's physical, mental, or emotional condition (seeFamily Ct Act § 1012 [f] [i] [B]; Matter of Elijah J. [Phillip J.], 77 AD3d 835 [2010]; Matter of Briana F. [Oswaldo F.], 69AD3d 718 [2010]; Matter of JordanE., 57 AD3d 539 [2008]; Matter of Andrew Y., 44 AD3d 1063 [2007]; Matter of Jayda D.-B., 33 AD3d998 [2006]; cf. Nicholson vScoppetta, 3 NY3d 357 [2004]). The evidence established that the father slapped themother while the mother was holding the child, who was only a few weeks old, in her arms,thereby creating an imminent risk of impairing the child's physical, mental, or emotionalcondition. Moreover, additional evidence established a pattern of domestic violence andintimidation perpetrated by the father.
Accordingly, the Family Court properly found that the child's physical, mental, or emotionalcondition was in imminent danger of becoming impaired as a result of the father's failure toexercise a minimum degree of care (see Family Ct Act § 1012 [f] [i] [B]). Skelos,J.P., Covello, Balkin and Austin, JJ., concur.