IN RE: M.G. (2025)

Order of fact-finding and disposition (one paper), Family Court, New York County (Valerie A. Pels, J.), entered on or about April 3, 2024, which, after a hearing, determined that appellant father neglected the subject child, unanimously affirmed, without costs.

The mother's fact-finding testimony, which Family Court credited, was sufficient to establish that the child was subject to actual or imminent danger of injury or impairment to his emotional and mental condition as a result of his exposure to domestic violence between the father and 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 mother testified that during an incident in 2021, and on July 9, 2023, the father choked her while the child was present.  The fact that the domestic violence occurred in close proximity to the child, who was approximately 10 feet away in a bedroom during the July 2023 incident, permits an inference of impairment or imminent danger of impairment even in the absence of evidence that he was 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]).

The mother's testimony also demonstrated that the father engaged in a pattern of verbally abusing her while the child was present, which placed him in imminent risk of emotional and physical impairment (see Matter of Angie G. [Jose D.G.], 111 A.D.3d 404, 404–405, 974 N.Y.S.2d 369 [1st Dept. 2013];  Matter of Edward C.L., 292 A.D.2d 282, 283, 740 N.Y.S.2d 298 [1st Dept. 2002]).  Contrary to the father's contention, the hearsay rule does not apply to the child's out-of-court statements telling him to “stop saying that.”  ACS did not offer those statements for their truth but for the legitimate, nonhearsay purpose of showing that the child understood and reacted to his father's demeaning comments to his mother (see People v. Becoats, 17 N.Y.3d 643, 655, 934 N.Y.S.2d 737, 958 N.E.2d 865 [2011], cert denied 566 U.S. 964, 132 S.Ct. 1970, 182 L.Ed.2d 822 [2012];  People v. Cromwell, 71 A.D.3d 414, 415, 897 N.Y.S.2d 35 [1st Dept. 2010], lv denied 15 N.Y.3d 803, 908 N.Y.S.2d 163, 934 N.E.2d 897 [2010]).

Family Court properly drew the strongest negative inference from the father's failure to testify at the fact-finding hearing (see Matter of Zelda McM. [Patrick L.-O. McM.], 154 A.D.3d 573, 574, 62 N.Y.S.3d 349 [1st Dept. 2017]).  The father's out-of-court statements, as testified to by the mother, were admissible as an admission against interest of a party, and the court properly inferred that he implicitly admitted that those statements were true (see Matter of Adonis H. [Enerfry H.], 198 A.D.3d 478, 479, 156 N.Y.S.3d 153 [1st Dept. 2021]).  There is no basis for disturbing the court's determination that the mother's testimony was credible (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975];  Matter of Elijah C., 49 A.D.3d 340, 852 N.Y.S.2d 764 [1st Dept. 2008]).