IN RE: MANUEL G. (Anonymous) (2026)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the Administration for Children's Services appeals from an order of the Family Court, Kings County (Melody Glover, J.), dated October 17, 2024.  The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the father neglected the subject children, dismissed the petitions.

ORDERED that the order is reversed, on the facts, without costs or disbursements, the petitions are reinstated, a finding is made that the father neglected the subject children, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and determinations thereafter.

The Administration for Children's Services (hereinafter ACS) commenced these related proceedings pursuant to Family Court Act article 10, alleging that the father neglected the subject children by committing an act of domestic violence against the children's mother in their presence.  At a fact-finding hearing, ACS admitted a recording of the mother's 911 call related to the alleged act of domestic violence, the mother's certified medical records, and ACS's investigation records, which included various statements made by the children related to the alleged act of domestic violence.  In an order dated October 17, 2024, made after the fact-finding hearing, the Family Court, upon a finding that ACS failed to establish that the father neglected the children, dismissed the petitions.  ACS appeals.

“A finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotional 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 Kyng T.B. [Theodore B.], 234 A.D.3d 682, 683, 223 N.Y.S.3d 716 [internal quotation marks omitted];  see Family Ct Act § 1012[f]).  “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 Nina P. [Giga P.], 180 A.D.3d 1047, 1047, 118 N.Y.S.3d 247;  see Matter of Xierra N. [Lewis N.], 226 A.D.3d 790, 790, 208 N.Y.S.3d 703).  “Furthermore, impairment or imminent danger of physical impairment should also be inferred from the subject children's proximity to violence directed against a family member, even absent evidence that they were aware of or emotionally impacted by the violence” (Matter of Najaie C. [Niger C.], 173 A.D.3d 1011, 1012, 100 N.Y.S.3d 561 [internal quotation marks omitted];  see Matter of Xierra N. [Lewis N.], 226 A.D.3d at 790–791, 208 N.Y.S.3d 703).

Here, a preponderance of the credible evidence presented at the fact-finding hearing supported a finding that the children's physical, mental, or emotional conditions were impaired or in imminent danger of impairment by the father's commission of an act of domestic violence against the mother (see Matter of Joseph M.H. [Frederick H.], 227 A.D.3d 996, 996–997, 210 N.Y.S.3d 500).  The Family Court erred in concluding that the evidence did not sufficiently demonstrate that it was the father who cut the mother with a knife during the incident.  Although the mother initially reported to a 911 operator that she did not know who had cut her, the medical records, the children's statements, and the other evidence presented at the fact-finding hearing were sufficient to meet ACS's burden of proof.  Moreover, as the court properly determined, the father's failure to testify at the fact-finding hearing warranted a negative inference against him (see Matter of Legend C.-F.F. [Demetri H.], 231 A.D.3d 1022, 1023, 218 N.Y.S.3d 698).  Under these circumstances, the court's finding that the children were not neglected by the father is not supported by the record (see Matter of Asani J. [Assata A.], ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2026 N.Y. Slip Op. 00130, *1;  Matter of Najaie C. [Niger C.], 173 A.D.3d at 1012, 100 N.Y.S.3d 561).

In light of the foregoing, we need not reach ACS's remaining contention.

Accordingly, we reverse the order, reinstate the petitions, find that the children are neglected within the meaning of Family Court Act § 1012(f), and remit the matter to the Family Court, Kings County, for a dispositional hearing and determinations thereafter.

DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.