| Matter of Aliyah B. (Denise J.) |
| 2011 NY Slip Op 06650 [87 AD3d 943] |
| September 29, 2011 |
| Appellate Division, First Department |
| In the Matter of Aliyah B. and Another, Children Alleged to beNeglected. Denise J., Appellant; Administration for Children's Services, Respondent. James B.,Nonparty Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), forAdministration for Children's Services, respondent. Steven N. Feinman, White Plains, for James B., respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel),Attorney for the Children.
Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered onor about September 28, 2010, which, upon a fact-finding determination that respondent motherneglected her three children, released two of the children to the custody of their father with 12months of supervision by the Administration for Children's Services (ACS), and ordered themother to, among other things, comply with the terms of an order of protection, unanimouslyaffirmed, without costs.
A preponderance of the evidence supports the court's finding that the mother neglected herchildren by committing acts of domestic violence against the children's father in the children'spresence (see Family Ct Act § 1012 [f] [i] [B]; Matter of Enrique V. [Jose U.V.], 68 AD3d 427 [2009]). Theout-of-court statements made by one of the children regarding the mother's attacks on the fatherwere corroborated by the father's testimony, the responding police officer's testimony, and theout-of-court statements of the mother's daughters (see Matter of Nicole V., 71 NY2d 112,118-119, 124 [1987]). "No expert or medical testimony is required to show that the violent actsexposed the children to an imminent risk of harm" (Enrique V., 68 AD3d at 427).
A preponderance of the evidence also supports the court's finding of educational neglect as toone of the children. The record shows that, for the 2008-2009 school year, the child missed 64out of 181 days of school and was late 38 out of 181 days. Evidence of excessive unexcusedabsences from school will support a finding of neglect (see Matter of Annalize P. [AngieD.], 78 [*2]AD3d 413, 414 [2010]). The child's guidancecounselor testified that he had contacted the mother on numerous occasions regarding the child'struancy, and there is no basis for disturbing the court's credibility determinations (EnriqueV., 68 AD3d at 427).
The court properly determined that it was in the best interests of the children to be released tothe custody of their father (Family Ct Act § 1052 [a] [ii]). The mother failed to cooperatewith the agency or address the domestic violence issues that led to the removal of her children.By contrast, the father had taken steps to cooperate with family services and to create a stablehome for his children (see Matter of Jason M., 146 AD2d 904, 905 [1989]).
Given the court's finding that the mother committed acts of domestic violence against thefather, which was supported by a preponderance of the evidence, it providently exercised itsdiscretion in issuing an order of protection prohibiting her from contacting her children for aperiod of one year (see Family Ct Act § 1054 [a]; § 1056 [1]; Matter of Stefani C., 61 AD3d 681[2009]).
During the pendency of the neglect proceeding, the mother never moved for a hearingpursuant to Matter of Tropea v Tropea (87 NY2d 727 [1996]) to prevent the relocation ofthe children to another jurisdiction. Accordingly, her argument that the court improperlypermitted the children to relocate to Pennsylvania with the father is unpreserved, and we declineto review it in the interest of justice. Were we to review it, we would reject it. A preponderanceof the evidence demonstrates that the father's relocation to Pennsylvania is in the children's bestinterests (Matter of Jennings vYillah-Chow, 84 AD3d 1376, 1377 [2011]). The father informed ACS that he wanted tomove to Philadelphia to live in his sister's home in order to improve the children's lives.Pennsylvania Child Protective Services assessed the sister's home and found it to be appropriateand safe. In addition, the children's expression of a clear preference for remaining in the father'scare in Pennsylvania "is entitled to some weight" (Jennings, 84 AD3d at 1377).Concur—Tom, J.P., Catterson, Renwick, Freedman and Manzanet-Daniels, JJ.