IN RE: JAIDEN M. (2018)

Order of fact-finding and disposition, Family Court, New York County (Jane Pearl, J.), entered on or about February 2, 2017, which, to the extent appealed from as limited by the briefs, determined, following a hearing, that respondent is a person legally responsible for one of the subject children, and that he neglected that child and two of his biological children, unanimously affirmed, without costs.

The evidence adduced at the fact-finding hearing supports Family Court's findings that respondent, who had known the subject children's mother for 10 years and was the father of the two youngest subject children, was a person legally responsible for the mother's eldest child within the meaning of Family Court Act § 1012(g).  The mother's and the caseworker's undisputed testimony established that respondent provided financial support for the eldest child, whom respondent, by his own testimony admitted he considered to be his son, and that the eldest child often referred to respondent as “daddy” (see Matter of Yolanda D., 88 N.Y.2d 790, 797, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996]; Matter of Devin W. [Devonne W.], 154 A.D.3d 723, 724, 61 N.Y.S.3d 667 [2d Dept. 2017]; Matter of Keoni Daquan A. [Brandon W.—April A.], 91 A.D.3d 414, 415, 937 N.Y.S.2d 160 [1st Dept. 2012]; Matter of Alexandria X. [Ronald X.], 80 A.D.3d 1096, 1098, 915 N.Y.S.2d 716 [3d Dept. 2011] ).  The mother also testified that respondent would arrange for the eldest child to spend weekends with him, and that respondent would occasionally spend the night at her home, which permits an inference of substantial familiarity between the eldest child and respondent (see Matter of Kevin N. [Richard D.], 113 A.D.3d 524, 524, 980 N.Y.S.2d 382 [1st Dept. 2014] ).

In addition, a preponderance of the evidence establishes that on July 21, 2016, respondent neglected the children by committing an act of domestic violence against the mother while the children were present (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]; Matter of Andru G. [Jasmine C.], 156 A.D.3d 456, 457, 64 N.Y.S.3d 886 [1st Dept. 2017]; Matter of Moises G. [Luis G.], 135 A.D.3d 527, 527, 24 N.Y.S.3d 239 [1st Dept. 2016]; Matter of Cherish C. [Shanikwa C.], 102 A.D.3d 597, 598, 959 N.Y.S.2d 51 [1st Dept. 2013] ).  It is undisputed that the mother's medical records established that she was bruised when she went to the hospital immediately after the choking incident occurred.

Contrary to respondent's contention, the caseworker's testimony established that the middle child had witnessed the July 21, 2016 incident (see Matter of Kaila A. [Reginald A.-Lovely A.], 95 A.D.3d 421, 421, 942 N.Y.S.2d 789 [1st Dept. 2012] ).  The caseworker's and the mother's testimony also established that the eldest child and youngest child were in imminent danger of physical harm due to their close proximity to the potentially deadly violence that occurred (see Matter of Isabella S. [Robert T.], 154 A.D.3d 606, 607, 62 N.Y.S.3d 362 [1st Dept. 2017] ).

The Family Court properly drew a negative inference against respondent for failing to testify at the fact-finding hearing, even though a related criminal proceeding was pending against him at the time of the hearing (see Matter of Rachel S.D. [Luis N.], 113 A.D.3d 450, 979 N.Y.S.2d 22 [1st Dept. 2014] ).  There is no basis for disturbing the court's findings of fact and credibility determinations, which are supported by the record (see Matter of Davion A. [Marcel A.], 68 A.D.3d 406, 889 N.Y.S.2d 570 [1st Dept. 2009] ).