NN v. << (2022)

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A

Marion C. Perry, Brooklyn, for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent.

Dawne A. Mitchell, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the child.

Order of disposition, Family Court, Bronx County (E. Grace Park, J.), entered on or about June 17, 2021, to the extent it brings up for review a fact-finding order, same court (Elenor Cherry, J.), entered on or about April 3, 2020, which found that respondent father neglected the subject child, unanimously reversed, on the law and the facts, without costs, the fact-finding determination vacated, and the petition dismissed.  Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

Petitioner failed to demonstrate by a preponderance of the evidence that respondent neglected the child by committing an act of domestic violence in her presence (Family Ct Act § 1046[b][i] ).  The record is silent as to whether the child actually witnessed the incident, and Family Court did not make a specific finding on that issue.  Furthermore, there is no evidence that the single incident was part of a broader pattern of domestic violence in the home.  Petitioner also failed to present any evidence about any impact of the incident on the child (see Matter of Andy Z. [Hong Lai Z.], 105 AD3d 511, 511–512 [1st Dept 2013];  Matter of John D., Jr. [John D.], 103 AD3d 514, 514 [1st Dept 2013] ).

On July 16, 2021, the underlying neglect petition was dismissed with prejudice, but the neglect finding remains, and we now reverse and vacate that finding.