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Supreme Court, Appellate Division, First Department, New York.

IN RE: CHANDLER A., and Another, Dependent Children Under Eighteen Years of Age, etc., Carlton A., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.


Decided: January 24, 2019

Sweeny, J.P., Tom, Kahn, Oing, Singh, JJ. Larry S. Bachner, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.

Order of disposition, Family Court, Bronx County (Elenor C. Reid, J.), entered on or about March 27, 2018, which, upon a finding that respondent father neglected the subject children, released the children to the custody of their mother and, inter alia, ordered continuation of respondent's supervised visitation with the children, unanimously affirmed, without costs.  Appeal from fact-finding order, same court and Judge, entered on or about October 31, 2017, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.

The finding of neglect is supported by a preponderance of the evidence (see Family Court Act §§ 1012[f][i][B];  1046[b][i] ), which showed that respondent physically assaulted the children's mother on Easter Sunday in the children's presence.  The mother's testimony that respondent hit her in the face with the back of his hand, punched her in the nose, drawing blood, and yanked her by the hair was corroborated by the elder child's out-of-court statements to the agency caseworker (see Matter of Cristalyn G. [Elvis S.], 158 A.D.3d 563, 71 N.Y.S.3d 464 [1st Dept. 2018] ).  The court's determination that the mother testified credibly and the father's sweeping denials of physical violence against the mother were not credible is entitled to deference (see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975];  Matter of Aaron C. [Grace C.], 105 A.D.3d 548, 963 N.Y.S.2d 208 [1st Dept. 2013] ).

The record also demonstrates that the children were at risk of substantial harm due to this single egregious incident of violence (see Matter of Allyerra E. [Alando E.], 132 A.D.3d 472, 474, 17 N.Y.S.3d 634 [1st Dept. 2015], lv denied 26 N.Y.3d 913, 2015 WL 8816675 [2015] ).  Both parents admitted that the children were upset;  the mother testified that the children were very scared and nervous, that the elder child yelled, “Stop it”, during the fight, and that she locked herself and the children in the bathroom to wait for the police (see e.g. Matter of Isaiah D. [Mark D.], 159 A.D.3d 534, 72 N.Y.S.3d 84 [1st Dept. 2018];  Matter of Macin D. [Miguel D.], 148 A.D.3d 572, 49 N.Y.S.3d 138 [1st Dept. 2017] ).

The court providently exercised its discretion in denying respondent's request for an adjournment of the dispositional hearing.  The court held the hearing over two separate dates during which it gathered testimony from an agency caseworker and collected an updated report on respondent's progress with respect to agency-referred services.  Respondent was represented by counsel, had multiple opportunities to be heard, and was heard, by the court, and failed to indicate the necessity for an adjournment.

The court's determination that it is in the best interests of the children that respondent have only supervised visitation is supported by a preponderance of the evidence (see e.g. Matter of Darren S. [Darren S.], 133 A.D.3d 534, 535, 21 N.Y.S.3d 29 [1st Dept. 2015];  Matter of Marrero v. Johnson, 89 A.D.3d 596, 933 N.Y.S.2d 29 [1st Dept. 2011] ).