IN RE: Zacari S. (Anonymous). (2026)

Submitted—September 11, 2026

DECISION & ORDER

M/

In related proceedings pursuant to Family Court Act article 10, the father appeals from an order of disposition of the Family Court, Kings County (Erik S. Pitchal, J.), dated May 16, 2025.  The order of disposition, upon an order of fact-finding of the same court dated January 22, 2025, made after a fact-finding hearing, finding that the father neglected the subject children, after a dispositional hearing, and upon the father's failure to appear at the dispositional hearing, inter alia, placed the subject children in the custody of the nonrespondent mother and placed the father under the supervision of the petitioner for a period of 12 months upon certain conditions.

ORDERED that the appeal from the order of disposition is dismissed, without costs or disbursements, except with respect to matters that were the subject of contest below (see CPLR 5511);  and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

In November 2024, 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, inter alia, by committing acts of domestic violence in their presence and by inflicting excessive corporal punishment upon them.  In an order of fact-finding dated January 22, 2025, after a fact-finding hearing, the Family Court found that the father neglected the children.  In an order of disposition dated May 16, 2025, the court, after a dispositional hearing at which the father failed to appear, among other things, placed the children in the custody of the nonrespondent mother and placed the father under the supervision of ACS for a period of 12 months, until May 15, 2026, under certain conditions.  The father appeals.

Since the order of disposition was made upon the father's default, review is limited to matters that were the subject of contest in the Family Court (see Matter of Justyn H. [Laverne H.], 191 AD3d 876).  Moreover, the father's appeal from so much of the order of disposition as placed him under the supervision of ACS for a period of 12 months is academic, as that portion of the order of disposition has expired (see Matter of Nylaih B. [Raymond B.], 251 AD3d 691;  Matter of Angelina G. [Angel G.], 220 AD3d 773, 774).  Accordingly, review is limited to the court's finding that the father neglected the children.

In a child neglect proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Matter of Isaiah D. [Chinelle D.], 247 AD3d 1022, 1023;  Matter of Kaira K. [Karam S.], 226 AD3d 900, 902).  “ ‘To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ ” (Matter of Kaira K. [Karam S.], 226 AD3d at 902, quoting Matter of Chloe P.-M. [Martinique P.], 220 AD3d 783, 784).  “Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor” (Matter of Ashlyn M. [Robert J.], 228 AD3d 939, 941 [internal quotation marks omitted] ).

“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 Asani J. [Assata A.], 245 AD3d 711, 712 [internal quotation marks omitted] ).  “ ‘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’ ” (id., quoting Matter of Divine K.M. [Andre G.], 211 AD3d 733, 735;  see Matter of Jayce W. [Lucinda J.], 224 AD3d 916, 917).  “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 AD3d 1011, 1012 [internal quotation marks omitted] ).

Moreover, “[a]lthough parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect” (Matter of Moshae L. [Angela J.], 237 AD3d 821, 823 [internal quotation marks omitted];  see Matter of Alexander S. [Gabriel H.], 224 AD3d 907, 910).  “A single incident of excessive corporal punishment may suffice to sustain a finding of neglect” (Matter of Thaddeus R. [Gabrielle V.], 198 AD3d 901, 902 [internal quotation marks omitted] ).

Here, the Family Court's finding that the father neglected the children was supported by a preponderance of the evidence (see Family Ct Act § 1046[b][i] ).  The evidence adduced at the fact-finding hearing, together with the strong negative inference that the court was entitled to draw against the father upon his failure to testify (see Matter of Israel H.-F. [Sabrina U.], 250 AD3d 937, 938), established that the children's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the father's commission of acts of domestic violence in the children's presence (see Matter of Joseph M.H. [Frederick H.], 227 AD3d 996, 996–997) and by the father's infliction of excessive corporal punishment upon the children (see Matter of Nathaniel I.G. [Marilyn A.P.], 227 AD3d 806, 807;  Matter of Eliora B. [Kennedy B.], 146 AD3d 772, 774).

The father's remaining contentions are not properly before this Court.

CONNOLLY, J.P., DOWLING, TAYLOR and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court