IN RE: A.A. (2024)

Order of fact-finding and disposition (one paper) of the Family Court, New York County (Maria Arias, J.), entered on or about August 28, 2023, which, after a fact-finding hearing, found that appellant Carlos B. neglected A.A., a child for whom he was legally responsible, and his children J.B. and R.Z.B., by committing acts of domestic violence against the children's mother in their presence, unanimously affirmed, without costs.

A preponderance of the evidence supports the court's finding of neglect based on domestic violence against the children's mother (see Family Court Act §§ 1012[e][iii], 1046[b][i];  Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985]).  The mother testified that there was a history of escalating physical altercations between her and appellant, with the worst incident occurring in April 2020.  On the day of that incident, appellant pushed the mother with enough force that she crashed into a sheetrock wall and fell heavily to the floor, landing hard on her right ankle and breaking three toes.  The two younger children were present during the encounter, holding onto the mother's legs as she fell, and the older child witnessed the aftermath, after the mother had fallen.  These circumstances are sufficient to support a neglect finding, as they established that the appellant's acts of domestic violence posed an imminent danger to the children's physical, mental, or emotional well-being (see Matter of G.B. [Gary B.], 227 A.D.3d 581, 582, 211 N.Y.S.3d 60 [1st Dept. 2024];  Matter of Athena M [Manuel M.T.]., 190 A.D.3d 644, 644–645, 136 N.Y.S.3d 740 [1st Dept. 2021]).  We find no basis in the record to disturb the court's credibility determinations (see Matter of Heily A. [Flor F.–Gustavo A.], 165 A.D.3d 457, 457, 85 N.Y.S.3d 52 [1st Dept. 2018]).

The mother's account of the events was corroborated by A.A.'s out-of-court statements to the caseworker about the incident (see Matter of Isaiah D. [Mark D.], 159 A.D.3d 534, 535, 72 N.Y.S.3d 84 [1st Dept. 2018]).  Despite appellant's position otherwise, A.A.'s statements to the caseworker do not cast doubt on the mother's account, as there is no dispute that A.A. was in the room only during the aftermath of the incident but not during the incident itself.  Furthermore, the father chose not to testify during the hearing, and the court properly credited the mother's version of events in making its findings (see Matter of Heily A., 165 A.D.3d at 457, 85 N.Y.S.3d 52).

To the extent the order appealed could be interpreted as limiting parenting access time, any such effect was removed by the subsequent order in December 2023, which expanded access time.  Thus, the appeal from that portion of the order is moot (see Matter of Moona C. [Charlotte K.], 107 A.D.3d 466, 466, 967 N.Y.S.2d 54 [1st Dept. 2013]).  In any event, in light of the findings of neglect, the imposition of supervised virtual visitation was in the children's best interests (see Matter of Ni'Kia C. [Dominique J.], 118 A.D.3d 515, 516, 988 N.Y.S.2d 35 [1st Dept. 2014]).

Appellant's remaining arguments are unpreserved and we decline to review them in the interest of justice (see Matter of D.P., 227 A.D.3d 549, 549–550, 210 N.Y.S.3d 409 [1st Dept. 2024]).