| Matter of Ndeye D. (Benjamin D.) |
| 2011 NY Slip Op 05494 [85 AD3d 1026] |
| June 21, 2011 |
| Appellate Division, Second Department |
| In the Matter of Ndeye D., an Infant. Administration for Children'sServices, Respondent; Benjamin D., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and John A. Newbery of counsel),attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the father appeals (1)as limited by his brief, from so much of a fact-finding order of the Family Court, Queens County(Richter, J.), dated September 15, 2010, as, after a hearing, found that he had neglected thesubject child, and (2) from an order of disposition of the same court dated October 27, 2010,which upon the fact-finding order and after a hearing, placed him under the petitioner'ssupervision for a period of six months.
Ordered that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the order of disposition; and it isfurther,
Ordered that the appeal from so much of the order of disposition as placed the father underthe petitioner's supervision for a period of six months is dismissed as academic, without costs ordisbursements; and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
The appeal from so much of the order of disposition as placed the appellant under thesupervision of the petitioner for a period of six months must be dismissed as academic, as thatportion of the order has expired by its own terms (see Matter of Amber C., 38 AD3d 538, 539 [2007]; Matter of Daqwuan G., 29 AD3d694, 695 [2006]; Matter of Dareth O., 304 AD2d 667, 668 [2003]). However, sincethe adjudication of neglect "constitutes a permanent and significant stigma that might indirectlyaffect the appellant's status in future proceedings," the appeal from the order of disposition,which brings up for review the finding of neglect, is not academic (Matter of DaqwuanG., 29 AD3d at 695; see Matter ofKevin M.H. [Kenneth H.], 76 AD3d 1015 [2010]; Matter of Albert Francis B., 66 AD3d 769 [2009]; Matter of Brian R., 48 AD3d 576[2008]).
At a fact-finding hearing in an abuse and/or neglect proceeding pursuant to Family Court Actarticle 10, a petitioner has the burden of establishing, by a preponderance of the evidence, thatthe subject child has been abused and/or neglected (see Family Ct Act § 1046 [b] [i]; Matter of Isaac J. [Joyce J.], 75 AD3d506 [2010]; Matter of Tammie Z., 66 NY2d 1 [1985]). Here, the evidence adducedat the hearing established that the father, while holding the subject child, who was then less thantwo years old, hit, shoved, and screamed at the mother. The evidence further indicated that thefather had previously committed acts of domestic violence against the mother, including slappingher, and that some of those incidents—like the subject incident—occurred in thepresence of the child. Although an isolated incident of domestic violence outside the presence ofa child is insufficient to establish neglect (see Matter of Larry O., 13 AD3d 633 [2004]; Matter of Davin G., 11 AD3d 462[2004]), here, the incident of domestic violence at issue was neither isolated nor did it occuroutside the presence of the subject child. Accordingly, the Family Court properly found that thepetitioner established, by a preponderance of the evidence, that as a result of the father's conduct,the child's physical, mental, or emotional condition was in imminent danger of impairment(see Family Ct Act § 1012 [f] [i] [B]; Matter of Elijah J. [Phillip J.], 77 AD3d 835 [2010]). Mastro, J.P.,Florio, Belen and Chambers, JJ., concur.