IN RE: J.A. (2024)

Order of disposition, Family Court, New York County (Grace Oboma–Layat, J.), entered on or about December 21, 2023, to the extent it brings up for review a fact-finding order, same court (Keith E. Brown, J.), entered on or about October 19, 2023, which found that respondent father neglected the three subject children, unanimously affirmed, without costs.  Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The finding of neglect is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B], 1046[b][i]).  The evidence established that the children's mental and emotional condition were impaired or in imminent danger of becoming impaired as a result of their exposure to the domestic violence committed by the father against the mother (see Matter of O'Ryan Elizah H. [Kairo E.], 171 A.D.3d 429, 95 N.Y.S.3d 520 [1st Dept. 2019]).  The fact that the domestic violence occurred in close proximity to the children, who were in the living room, permits an inference of impairment or imminent danger of impairment even in the absence of direct evidence that they were aware of it or emotionally affected by it (see Matter of Athena M. [Manuel M.T.], 190 A.D.3d 644, 644, 136 N.Y.S.3d 740 [1st Dept. 2021];  Matter of Isabella S. [Robert T.], 154 A.D.3d 606, 606–607, 62 N.Y.S.3d 362 [1st Dept. 2017]).

Contrary to the father's contention, the finding that he committed an act of domestic violence against the mother, including dragging her down the hall and then choking her and repeatedly slapping her in the face, is not against the weight of the evidence.  Family Court was in the best position to observe and assess the demeanor of the witnesses and there is no basis to disturb its credibility determinations (see Matter of J.R.M.-C. [Antonio M.], 176 A.D.3d 623, 624, 110 N.Y.S.3d 676 [1st Dept. 2019];  Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339, 911 N.Y.S.2d 339 [1st Dept. 2010], lv denied 16 N.Y.3d 705, 2011 WL 589734 [2011]), including its finding that the father's testimony that the mother banged her own head against the wall was incredible.  The inconsistencies in the mother's testimony as to whether the father dragged her back to her apartment by her T-shirt or ankle were peripheral and did not render her testimony unworthy of belief as to the dispositive issues (see Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 660, 966 N.Y.S.2d 406 [1st Dept. 2013]).  Furthermore, the court did not err in crediting the caseworker's testimony as her inability to recall the exact date she was assigned to the family or describe the bruises she saw on the mother's neck the day after the incident were minor and similarly peripheral (see Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 557, 941 N.Y.S.2d 46 [1st Dept. 2012]).