| Matter of Zaire D. (Benellie R.) |
| 2011 NY Slip Op 09321 [90 AD3d 923] |
| December 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Zaire D. Administration for Children's Services,Respondent; Benellie R., Appellant, et al., Respondent. |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and SusanB. Eisner of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan Clement of counsel), attorneyfor the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals,as limited by her brief, from so much of an order of fact-finding and disposition (one paper) ofthe Family Court, Kings County (Danoff, J.), dated January 5, 2011, as, after fact-finding anddispositional hearings, found that she had neglected the subject child, and placed the child in thecustody of the New York City Commissioner of Social Services.
Ordered that the order of fact-finding and disposition is affirmed insofar as appealed from,without costs or disbursements.
Contrary to the mother's contention, the Family Court's determination that she regularly usedmarijuana, and committed acts of domestic violence against the father while the father washolding the child in his arms, is supported by a preponderance of the evidence (seeFamily Ct Act § 1046 [b] [i]). This evidence was sufficient to support the Family Court'sfinding that the mother neglected the child (see Family Ct Act § 1012 [f] [i] [B];§ 1046 [a] [iii]; Matter of AjaySumert D. [Vijay Anand D.], 87 AD3d 637, 638 [2011], lv denied 17 NY3d 717[2011]; Matter of Ndeye D. [BenjaminD.], 85 AD3d 1026, 1027 [2011]; Matter of Kiara C. [David C.], 85 AD3d 1025, 1026 [2011]; Matter of Gregory S., 39 AD3d552 [2007]; Matter of MichelleL., 24 AD3d 443, 444 [2005]; Matter of Ayana Jean L., 23 AD3d 472, 472-473 [2005]; Matter of Aminat O., 20 AD3d480, 481 [2005]; Matter of Sade W., 286 AD2d 770, 771 [2001]). Additionally, theFamily Court providently exercised its discretion in drawing a negative inference against themother for her failure to testify at the hearing (see Matter of Tajani B., 49 AD3d 876, 877 [2008]; Matter of Karen Patricia G., 44 AD3d658, 660 [2007]; Matter ofChristopher L., 19 AD3d 597, 598 [2005]).
There is no basis in the record to overturn the Family Court's credibility determinationregarding the father's uncontroverted testimony, which is "entitled to considerable [*2]deference on appeal" (Matter of Sadiq H. [Karl H.], 81 AD3d 647, 647 [2011]; see Matter of Andrew B. [Deborah B.],73 AD3d 1036 [2010]; Matter ofSamantha B., 5 AD3d 590, 591 [2004]). The fact that the father was seeking custody ofthe child did not require wholesale rejection of his testimony, which implicated him, as well asthe mother, in drug use (see Matter ofAngelyna G., 46 AD3d 304 [2007]).
The Family Court providently exercised its discretion regarding the "scope and manner" ofcross-examination of the father (Salm vMoses, 13 NY3d 816, 817 [2009]; see Bernstein v Bodean, 53 NY2d 520, 529[1981]; Hoberg v Shree Granesh,LLC, 85 AD3d 965, 967 [2011]) by precluding certain questions that were"unnecessarily repetitive" or argumentative (Feldsberg v Nitschke, 49 NY2d 636, 643[1980]; see Bernstein v Bodean, 53 NY2d at 529; People v Harrison, 151 AD2d778, 779 [1989]).
While the mother is correct that the Family Court erred in admitting into evidence theDomestic Incident Report containing the father's out-of-court statements made to the policeconcerning the domestic dispute (seeMatter of Imani B., 27 AD3d 645, 646 [2006]), the Family Court possessed sufficientinformation to make its findings of fact without the statements, and it did not rely upon thestatements in its fact-finding (see Matterof Perez v Sepulveda, 51 AD3d 673, 673-674 [2008]; Matter of Yolanda D., 218AD2d 648, 651-652 [1995], affd 88 NY2d 790 [1996]). Mastro, A.P.J., Hall, Sgroi andCohen, JJ., concur.