IN RE: A.R. (2025)

Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about June 14, 2023, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about February 14, 2023, which found, after a hearing, that respondent neglected the subject child, unanimously affirmed, without costs.  Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

Respondent's contention that the court should not have proceeded with the last day of the fact-finding hearing in his absence, raised for the first time on appeal, is unpreserved for review (see Matter of Anthony G. v. Stephanie H., 189 A.D.3d 615, 616, 134 N.Y.S.3d 712 [1st Dept. 2020], lv denied 36 N.Y.3d 911, 2021 WL 1685981 [2021]).  Even if we were to review this claim, we would find, for the reasons set forth below, that respondent's absence from the proceedings did not violate his due process rights.

On the last day of the fact-finding hearing, the officer at the prison where respondent was being held relayed to the trial court that the respondent “refuse[d] to appear.”  Respondent's counsel stated that she was prepared to proceed in respondent's absence.  Respondent's counsel indicated that she would not be putting on a case, and the court entered a finding of neglect against respondent.  Respondent's mother, who was present for the hearing, informed the court that her son was ill and that was the reason for his nonappearance.  The court instructed respondent's counsel to verify the mother's statement, and it was confirmed that respondent had not been produced for the fact-finding because he was hospitalized and receiving treatment.  The court then noted that if respondent's nonappearance was due to his illness, it would be a “perfectly valid reason for an adjournment or a continuance.”  Respondent's counsel made no such application.

While it is concerning that respondent's nonappearance on the last day of the fact-finding hearing was determined to be unwilful only after the court entered a finding of neglect against him and drew a negative inference from his nonappearance, respondent has not raised any issue regarding representation by his counsel (see Matter of Anthony G., 189 A.D.3d at 616, 134 N.Y.S.3d 712), nor has respondent made a motion for rehearing or moved to vacate the order (see Family Ct Act § 1042).  It is undisputed that respondent's counsel was present at all stages of the fact-finding hearing and participated on his behalf (see Matter of Anthony G., 189 A.D.3d at 616, 134 N.Y.S.3d 712), and that the child was represented by counsel (see Family Ct Act § 1042).

Turning to the merits of petitioner's case, a preponderance of the evidence supports the finding that respondent neglected the child by inflicting an act of domestic violence upon the mother, resulting in injuries that required treatment at the hospital, while the child was present in the home (see Matter of Amelia A. [Saul A.], 223 A.D.3d 401, 401, 203 N.Y.S.3d 270 [1st Dept. 2024]).  That the finding was based on a single incident did not preclude Family Court from entering a finding of neglect, because “a single incident where the parent's judgment was strongly impaired and the child was exposed to a risk of substantial harm can sustain a finding of neglect” (Matter of Allyerra E. [Alando E.], 132 A.D.3d 472, 473, 17 N.Y.S.3d 634 [1st Dept. 2015], lv denied 26 N.Y.3d 913, 2015 WL 8816675 [2015]).  The court credited the testimony of the mother and the caseworker as to the nature and severity of the mother's injuries, and its credibility determinations are entitled to deference (see Matter of N.R. [D.W.], 227 A.D.3d 596, 596, 211 N.Y.S.3d 62 [1st Dept. 2024]).  Furthermore, respondent failed to offer any contradictory evidence, and his claim that the mother's injury resulted from an accidental push has no support in the record.  Given that respondent elected not to testify, the court was entitled to draw the strongest negative inference against him (see Matter of Nicole H., 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept. 2004]).