IN RE: HOLLI H. (2020)

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, respondent father appeals from an amended order of protection issued upon a finding that he committed the family offense of assault in the third degree under Penal Law § 120.00 (1) against petitioner mother. In appeal No. 2, the father appeals from an order entered after a fact-finding hearing determining that he neglected the subject child. In appeal No. 3, the father appeals from an order of disposition continuing the placement of the child in the custody of the maternal grandmother and placing the father under the supervision of petitioner, Wyoming County Department of Social Services.

Contrary to the father's contention in appeal No. 1, a fair preponderance of the evidence supports Family Court's determination that the father committed acts constituting the family offense of assault in the third degree (see Matter of Riggins v. Downing, 177 A.D.3d 1337, 1337, 110 N.Y.S.3d 367 (4th Dept. 2019); Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406–1407, 907 N.Y.S.2d 757 (4th Dept. 2010), lv denied 16 N.Y.3d 701, 917 N.Y.S.2d 108, 942 N.E.2d 319 [2011]). The mother's testimony that, during an argument, the father attacked her and caused her to sustain a broken tooth and a broken wrist, which required the mother to undergo physical therapy and may require future surgery, is sufficient to establish that the father committed the family offense of assault in the third degree, including the element of physical injury (see generally Penal Law § 10.00[9]; People v. Kraatz, 147 A.D.3d 1556, 1556–1557, 47 N.Y.S.3d 817 (4th Dept. 2017); Matter of Shawn L., 233 A.D.2d 953, 953, 650 N.Y.S.2d 498 (4th Dept. 1996)). Contrary to the father's further contention in appeal No. 1, “ ‘the court was entitled to credit the testimony of the [mother] over that of the [father]’ ” (Matter of Helles v. Helles, 87 A.D.3d 1273, 1274, 930 N.Y.S.2d 133 (4th Dept. 2011)).

The father's appeal from the order in appeal No. 2 must be dismissed inasmuch as the appeal from the dispositional order in appeal No. 3 brings up for review the propriety of the fact-finding order (see Matter of Lisa E., (Appeal No. 1), 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 (4th Dept. 1994)).

Contrary to the father's contention in appeal No. 3, the court's finding of neglect is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i] ). The evidence at the fact-finding hearing that the child witnessed and intervened in an incident of domestic violence in October 2017, together with evidence of a pattern of ongoing domestic violence between the father and the mother fueled by their drug and alcohol abuse, established that the child had been “ ‘placed ․ in imminent risk of emotional harm’ ” (Matter of Amodea D. [Jason D.], 112 A.D.3d 1367, 1368, 978 N.Y.S.2d 513 (4th Dept. 2013); see Matter of Jayden B. [Erica R.], 91 A.D.3d 1344, 1344–1345, 938 N.Y.S.2d 692 (4th Dept. 2012)).

The father's contention in appeal No. 3 that the court erred in continuing placement of the child with the maternal grandmother is moot inasmuch as a superseding custody order has been entered upon the consent of the father and the mother (see Matter of Nyjeem D. [John D.], 174 A.D.3d 1424, 1425, 103 N.Y.S.3d 330 (4th Dept. 2019)).

We have examined the father's remaining contentions in appeal No. 3 and conclude that none requires modification or reversal of the order in that appeal.