IN RE: JOSE M. (Anonymous). (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from an amended order of fact-finding of the Family Court, Kings County (Ilana Gruebel, J.), dated May 18, 2023.  The amended order of fact-finding, after a fact-finding hearing, found that the father neglected the child Jolie M. and derivatively neglected the child Jose M.

ORDERED that the amended order of fact-finding is reversed, on the law and the facts, without costs or disbursements, the petitions are denied, and the proceedings are dismissed.

The Administration for Children's Services (hereinafter ACS) commenced a proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the father neglected the child Jolie M. by engaging in acts of domestic violence in the presence of the child during an altercation with the father's girlfriend on August 3, 2021.  After the father's girlfriend, who was approximately eight months pregnant during the incident, had given birth the following month, ACS commenced another proceeding pursuant to Family Court Act article 10, alleging that the father derivatively neglected the newborn child, Jose M., based on the same domestic violence incident.  In an amended order of fact-finding dated May 18, 2023, made after a fact-finding hearing, the Family Court found that the father neglected Jolie M. and derivatively neglected Jose M. by committing acts of domestic violence against his girlfriend, which caused emotional harm to the children and placed them at risk of physical harm.  The father appeals.

“In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence” (Matter of Kingston T. [Diamond T.], 209 A.D.3d 743, 744, 175 N.Y.S.3d 577;  see Family Ct Act § 1046[b]).  “[A] finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotion condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence” (Matter of Kingston T. [Diamond T.], 209 A.D.3d at 744, 175 N.Y.S.3d 577 [internal quotation marks omitted];  see Matter of Divine K.M. [Andre G.], 211 A.D.3d 733, 735, 179 N.Y.S.3d 714).  “Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding” (Matter of Eternity S. [Vanessa P.], 183 A.D.3d 748, 751, 122 N.Y.S.3d 667 [internal quotation marks omitted];  see Matter of Divine K.M. [Andre G.], 211 A.D.3d at 735, 179 N.Y.S.3d 714).  “Nevertheless, exposing a child to domestic violence is not presumptively neglectful [as][n]ot every child exposed to domestic violence is at risk of impairment” (Matter of Eternity S. [Vanessa P.], 183 A.D.3d at 751, 122 N.Y.S.3d 667 [internal quotation marks omitted];  see Matter of Kingston T. [Diamond T.], 209 A.D.3d at 744, 175 N.Y.S.3d 577).

Here, the Family Court's findings that the father neglected Jolie M. and derivatively neglected Jose M. based on the August 3, 2021 domestic violence incident were not supported by a preponderance of the evidence.  The testimony of the father's girlfriend and an ACS child protective specialist established that the father struck his girlfriend in the mouth while Jolie M. was in her nearby bedroom down the hallway.  However, the testimony also indicated that Jolie M. did not see the incident or any resulting injuries, did not hear the father's girlfriend's plea for the father to stop hitting her, and was otherwise unaware that a domestic violence incident, as opposed to a mere verbal argument, was occurring (see Matter of Rebecca F. [Danequea J.], 234 A.D.3d 435, 436, 225 N.Y.S.3d 64;  Matter of Divine K.M. [Andre G.], 211 A.D.3d at 736, 179 N.Y.S.3d 714;  Matter of Kingston T. [Diamond T.], 209 A.D.3d at 745, 175 N.Y.S.3d 577;  Matter of K.S. [Dyllin S.], 180 A.D.3d 468, 468, 115 N.Y.S.3d 668 ).  Moreover, no evidence was offered to suggest that Jolie M. was frightened or upset by the incident, and the testimony established that, when recounting the events in a subsequent interview, the child presented a calm demeanor, interacted normally and comfortably with the father, and reportedly felt safe with the father (see Matter of Eternity S. [Vanessa P.], 183 A.D.3d at 751, 122 N.Y.S.3d 667;  see also Matter of Cruz W. [Jacki W.], 218 A.D.3d 782, 783, 194 N.Y.S.3d 75;  Matter of Kaylee S. [Kyle L.S.], 214 A.D.3d 423, 424, 184 N.Y.S.3d 54).  In the absence of evidence that Jolie M.'s physical, mental, or emotional condition was impaired or in danger of becoming impaired by the father's acts of violence against his girlfriend, the court's finding that the father neglected that child is not supported by a preponderance of the evidence (see Matter of Rebecca F. [Danequea J.], 234 A.D.3d at 436, 225 N.Y.S.3d 64;  Matter of Divine K.M. [Andre G.], 211 A.D.3d at 735, 179 N.Y.S.3d 714;  Matter of Kingston T. [Diamond T.], 209 A.D.3d at 745, 175 N.Y.S.3d 577;  Matter of K.S. [Dyllin S.], 180 A.D.3d at 468, 115 N.Y.S.3d 668).

Consequently, the Family Court's further finding that the father derivatively neglected Jose M. based on the same domestic violence incident was not supported by a preponderance of the evidence (see Matter of Sonja R. [Victor R.], 216 A.D.3d 1096, 1099, 189 N.Y.S.3d 280;  Matter of Dalia G. [Frank B.], 128 A.D.3d 821, 824, 10 N.Y.S.3d 113).

Accordingly, we reverse the amended order of fact-finding, deny the petitions, and dismiss the proceedings.

DILLON, J.P., WOOTEN, WARHIT and GOLIA, JJ., concur.