IN RE: J.V. and Another (2025)

Orders of disposition, Family Court, Bronx County (Alicea Elloras–Ally, J.), entered on or about February 20, 2024, which, to the extent they bring up for review amended fact-finding orders, same court and Judge, entered on or about February 20, 2024, which found that respondent neglected the subject children by committing an act of domestic violence against the children's mother in their presence, by violating an order of protection, and by failing to provide them with adequate shelter, unanimously modified, on the law and the facts, to the extent of vacating the finding that respondent neglected the children by failing to provide them with adequate shelter, vacating the finding that respondent neglected J.V., and otherwise affirmed, without costs.  Appeal from amended fact-finding orders, unanimously dismissed, without costs as subsumed in the appeal from the orders of disposition.  Order of protection, same court and judge, entered on or about February 20, 2024, unanimously affirmed, without costs.

A preponderance of the evidence established that respondent neglected A.H. by committing an act of domestic violence against the mother on February 26, 2019 in A.H.’s presence that resulted in physical, mental, or emotional impairment or imminent danger to A.H. (see Family Ct Act §§ 1012[f][i];  1046[b][i];  Matter of Terrence B. [Terrence J.B.], 171 A.D.3d 463, 463, 95 N.Y.S.3d 802 [1st Dept. 2019]).  The evidence demonstrated that respondent attacked the mother at night and got on top of her.  In the meantime, A.H. remained nearby, and at one point tried to intercede and told respondent to leave the mother alone.  Under these circumstances, Family Court properly concluded that A.H.’s emotional condition was impaired, and that A.H. was exposed to a risk of substantial harm (see Matter of J.R.J.-C. [Antonio M.], 176 A.D.3d 623, 624, 110 N.Y.S.3d 676 [1st Dept. 2019]).  A.H.’s out-of-court statements to petitioner agency's caseworker were corroborated by the mother's statements to the caseworker (see Matter of Cristalyn G. [Elvis S.], 158 A.D.3d 563, 564, 71 N.Y.S.3d 464 [1st Dept. 2018]).  Furthermore, there is no reason to disturb the court's credibility findings (see Matter of Syeda A. [Syed I.], 186 A.D.3d 1145, 1146, 131 N.Y.S.3d 14 [1st Dept. 2020]), and a negative inference was properly drawn for respondent's failure to testify (see Matter of Berllin B.O. [Shakira O.], 215 A.D.3d 581, 582, 188 N.Y.S.3d 32 [1st Dept. 2023]).  The record, however, does not reflect that J.V. was present at the time of the incident on February 26, 2019.

Contrary to respondent's contention, the evidence that A.H. stated that they were sad after the February 26, 2019 incident was sufficient to establish neglect, particularly given A.H.’s close physical proximity to the altercation, which involved screaming and physical violence (see Matter of Serenity G. v. Modi K., 171 A.D.3d 588, 588, 99 N.Y.S.3d 13 [1st Dept. 2019];  Matter of Jeaniya W. [Jean W.], 96 A.D.3d 622, 623, 946 N.Y.S.2d 476 [1st Dept. 2012]).

However, Family Court erred in finding neglect against respondent for failure to provide adequate shelter (see Matter of Puah B. [Autumn B.], 173 A.D.3d 422, 423, 103 N.Y.S.3d 52 [1st Dept. 2019], lv dismissed 33 N.Y.3d 1117, 106 N.Y.S.3d 708, 130 N.E.3d 1318 [2019]).  The record demonstrates that the conditions of the home improved over time (see Matter of Iyanah D., 65 A.D.3d 927, 927–928, 885 N.Y.S.2d 79 [1st Dept. 2009]), and there was no evidence that the children were in danger or imminent danger of impairment due to the condition of the apartment (see Matter of Angelica M. [Joe M.], 187 A.D.3d 508, 509, 130 N.Y.S.3d 318 [1st Dept. 2020]).  In fact, Administration for Children's Services never sought to remove the children from the parents’ care as a result of the allegedly unsanitary conditions in the home.  The strong inference drawn by the court against respondent for failure to testify is insufficient by itself to provide the necessary link between the conditions of the apartment and any imminent harm to the children (see Matter of Jayvien E. [Marisol T.], 70 A.D.3d 430, 436, 894 N.Y.S.2d 52 [1st Dept. 2010]).