| Matter of Harper F.-L. (Gary L.) |
| 2015 NY Slip Op 00880 [125 AD3d 652] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Harper F.-L. Administration forChildren's Services, Respondent; Gary L., Appellant. |
Lansner & Kubitschek, New York, N.Y. (Carolyn A. Kubitschek of counsel),for respondent-appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Ingrid R. Gustafson of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Claire V. Merkineof counsel), attorney for the child.
Appeals from (1) an order of disposition of the Family Court, Kings County (StevenZ. Mostofsky, J.), dated May 14, 2013, and (2) an order of that court dated November 22,2013. The order of disposition, after a dispositional hearing, released the subject child tothe custody of her mother without the supervision of a child protective agency. Theappeal from the order of disposition brings up for review an order of fact-finding of thatcourt (Stewart H. Weinstein, J.) dated December 23, 2011, which, after a fact-findinghearing, found that the father had neglected the child. The order dated November 22,2013, denied the father's motion to vacate the order of fact-finding and the order ofdisposition.
Ordered that the order of disposition is reversed, on the facts, without costs ordisbursements, the order of fact-finding and the order dated November 22, 2013, arevacated, the petition is denied, and the proceeding is dismissed; and it is further,
Ordered that the appeal from the order dated November 22, 2013, is dismissed asacademic, without costs or disbursements, in light of our determination on the appealfrom the order of disposition.
The subject child was born on December 29, 2008. On January 28, 2011, thepetitioner, the Administration for Children's Services (hereinafter ACS), commenced thisproceeding pursuant to Family Court Act article 10 against the father, alleging that hehad neglected the subject child. The petition alleged that the father had engaged inincidents of domestic violence against his then-girlfriend, the child's mother, in thechild's presence. At the conclusion of a fact-finding hearing, on the record and in awritten order of fact-finding, the Family Court made a finding that [*2]the father had neglected the child. The finding of neglectwas based on two instances of domestic violence, which occurred on February 8, 2009,and July 28, 2009, respectively. Subsequently, the Family Court issued an order ofdisposition dated May 14, 2013, releasing the child to the mother's custody without ACSsupervision. In September 2013, the father moved to vacate the orders of fact-finding anddisposition. The Family Court denied the father's motion in an order dated November 22,2013. The father appeals from both the order of disposition and the order datedNovember 22, 2013.
To establish neglect of a child, the petitioner must demonstrate, by a preponderanceof the evidence (see Family Ct Act § 1046 [b] [i]), (1) that thechild's physical, mental, or emotional condition has been impaired or is in imminentdanger of becoming impaired, and (2) that the actual or threatened harm to the child is aconsequence of the failure of the parent or caretaker to exercise a minimum degree ofcare in providing the child with proper supervision or guardianship (see FamilyCt Act § 1012 [f] [i] [B]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). The firstelement "ensures that the Family Court, in deciding whether to authorize stateintervention, will focus on serious harm or potential harm to the child, not just on whatmight be deemed undesirable parental behavior" (Nicholson v Scoppetta, 3 NY3dat 369). "[E]xposing a child to domestic violence is not presumptively neglectful.Not every child exposed to domestic violence is at risk of impairment" (id. at375; see Matter of Chaim R.[Keturah Ponce R.], 94 AD3d 1127, 1130 [2012]).
Here, the record does not support the Family Court's determination that ACSestablished, by a preponderance of the evidence, that the father neglected the subjectchild by engaging in acts of domestic violence against the mother in the child's presencewhich created an imminent risk of impairment to the child's physical, mental, oremotional condition. At the fact-finding hearing, ACS presented the testimony of thechild's maternal grandmother, the child's mother, and one of its caseworkers. Withrespect to the February 8, 2009, incident, the mother testified that a physical altercationbetween the father and herself occurred in the hallway of her apartment as she was on herway to the kitchen while her sister (hereinafter the aunt) was holding the child in thebedroom. The maternal grandmother testified that she was not present at the mother'sapartment when this incident occurred and, therefore, did not witness it. She testified thatwhen she arrived at the apartment after the incident, the aunt was holding the child.There was no testimony that the then five-week-old child saw, or was aware of, thisincident.
Regarding the July 28, 2009, incident, the maternal grandmother testified that shehad gone to a restaurant with the mother, the father, the child, and the aunt, and that analtercation between the mother and the father occurred as everyone was walking back tothe mother's apartment. The maternal grandmother stated that the mother and the fatherstarted arguing, and that the dispute became physical. The maternal grandmother testifiedthat, when the argument began, the father, who had been pushing the child in a stroller,let go of the stroller and the aunt took control of the stroller. The maternal grandmotheralso testified that the child remained in her stroller with the aunt during this incident andthat nothing happened to the child. Again, there was no testimony that the child, who wasthen seven months old, saw, or was aware of, what happened. The mother did not testifyabout the July 2009 incident.
The ACS caseworker testified that she examined the child on four differentoccasions and never saw any physical markings on her or evidence that she had beenharmed. The caseworker further testified that the child never told her that she was afraidof the father, and that the mother never informed the caseworker that the father hadphysically endangered the child.
The testimony presented by ACS at the fact-finding hearing did not demonstrate, bya preponderance of the evidence, that the father neglected the child, who was five weeksold at the time of one of the incidents and seven months old at the time of the other, byengaging in acts of domestic violence against the mother. The evidence presented at thathearing demonstrated that these incidents occurred either outside of the presence of thechild or in such a way that the child's physical, mental, and emotional condition was notimpaired or in imminent danger of becoming impaired as a result of the incidents (seeMatter of Chaim R. [Keturah Ponce R.], 94 AD3d at 1130; Matter of Larry O., 13 AD3d633, 633 [2004]). Accordingly, the Family Court's finding that the father had [*3]neglected the child is not supported by the record.
The father's remaining contentions either are without merit, are not properly beforethis Court, or have been rendered academic by our determination. Mastro, J.P., Austin,Sgroi and Barros, JJ., concur.