IN RE: KAYLEE S. (2023)

Order of fact-finding and disposition (one paper), Family Court, Bronx County, (Robert D. Hettleman, J.), entered on or about May 12, 2022, which to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent father neglected the subject children, unanimously modified, on the law and the facts, to the extent of vacating the findings of neglect based upon prior acts of domestic violence and intoxication, and otherwise affirmed, without costs.

The finding of neglect was supported by a preponderance of the evidence that the father committed an act of domestic violence in the presence of the children on a specific occasion (Family Ct Act §§ 1012[f][i][B];  1046[b]).  The out-of-court statements by one of the children regarding a domestic incident involving the father and the mother in the children's presence were sufficiently corroborated by the parents’ testimony, which described the altercation in a manner similar to the child's description, but for their denial of any physical component to the fight (see Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987];  Matter of Corey J. [Corey J.], 157 A.D.3d 449, 450, 68 N.Y.S.3d 443 [1st Dept. 2018]).  Family Court was entitled to reject the parents’ claim that nothing physical occurred between them as not credible, and we perceive no basis for disturbing the court's credibility determinations.  Furthermore, the child's statement that she was afraid of the father and did not feel safe in her home demonstrated an imminent risk of emotional impairment (see e.g. Matter of Justin E. [Jose N.-R.], 172 A.D.3d 613, 98 N.Y.S.3d 842 [1st Dept.2019], lv denied 33 N.Y.3d 911, 2019 WL 4067090 [2019]).  The younger child's presence in the room and proximity to the event likewise placed him in imminent danger of impairment, even if he was unaware of the interaction (see Matter of Andru G. [Jasmine C.], 156 A.D.3d 456, 457, 64 N.Y.S.3d 886 [1st Dept. 2017]).

However, a preponderance of the evidence does not support a finding of neglect based on the father's alcohol use or on any prior incidents of domestic abuse, as those findings were based on out-of-court statements of the child that were not sufficiently corroborated by any other evidence.