IN RE: JACOB W. (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this proceeding pursuant to Family Court Act article 10, respondent father appeals from an order that, inter alia, determined that he neglected two of the subject children and derivatively neglected the other subject child, and issued a 12–month stay away order of protection in favor of all three children.

Contrary to the father's contention, Family Court did not err in denying his motion to dismiss the petition at the close of petitioner's proof.  Viewing the evidence in the light most favorable to petitioner, we conclude that it adduced sufficient evidence to make a prima facie case of neglect (see generally Matter of Christian Q., 32 A.D.3d 669, 670, 821 N.Y.S.2d 282 [3d Dept. 2006] ).

We reject the father's contention that the court erred in determining that he neglected the two older children.  The evidence at the hearing established that the father engaged in abusive behavior against respondent mother while the children were present (see generally Matter of Michael WW., 20 A.D.3d 609, 611–612, 798 N.Y.S.2d 222 [3d Dept. 2005] ) and, more egregiously, choked his oldest son twice in two months (see generally Matter of Nah–Ki B. [Nakia B.], 143 A.D.3d 703, 706–707, 38 N.Y.S.3d 593 [2d Dept. 2016] ).  Furthermore, both of the older children, when interviewed by an investigator employed by petitioner, expressed fear and apprehension of the father.  Thus, petitioner established by a preponderance of the evidence that the two oldest children's “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” by the father's actions (Family Ct. Act § 1012[f][i][B];  see Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ).

Likewise, there was sufficient evidence to establish that the father derivatively neglected the youngest child, inasmuch as “the evidence of ․ neglect of [the older] child[ren] indicates a fundamental defect in [the father's] understanding of the duties of parenthood ․ or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” (Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 774, 45 N.Y.S.3d 144 [2d Dept. 2017] [internal quotation marks omitted] ).

The court did not abuse its discretion in issuing a stay-away order of protection with a duration of one year.  We conclude that the order of protection was in the best interests of the children (see Matter of Victoria X., 34 A.D.3d 1117, 1118, 824 N.Y.S.2d 477 [3d Dept. 2006], lv denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007] ).

The father “failed to preserve for our review [his] contention that the [Attorney for the Children (AFC) ] ․ failed to advocate for the [children's] position regarding custody and visitation and thus failed to provide [them] with effective representation” (Matter of Lopez v. Lugo, 115 A.D.3d 1237, 1237–1238, 982 N.Y.S.2d 640 [4th Dept. 2014] [internal quotation marks omitted] ).  He also did not preserve his contention that the AFC had a conflict of interest (see Matter of Aaliyah H. [Mary H.], 134 A.D.3d 1574, 1575, 21 N.Y.S.3d 917 [4th Dept. 2015], lv denied 27 N.Y.3d 906, 2016 WL 3083874 [2016] ).  Finally, we conclude that the father was not deprived of his right to confer with counsel (see generally People v. Joseph, 84 N.Y.2d 995, 997–998, 622 N.Y.S.2d 505, 646 N.E.2d 807 [1994];  Matter of Jaylynn R. [Monica D.], 107 A.D.3d 809, 810–811, 967 N.Y.S.2d 129 [2d Dept. 2013] ).