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

IN RE: DAMARIS D., and Another, Children Under the Age of Eighteen Years, etc., Durven D., Respondent–Appellant, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Petitioner–Respondent, Stephanie D., Respondent.


Decided: February 14, 2019

Friedman, J.P., Sweeny, Webber, Kahn, Kern, JJ. Steven N. Feinman, White Plains, for appellant. Zachary W. Carter, Corporation Counsel, New York (Jessica Miller of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the children.

The finding of neglect is supported by a preponderance of the evidence, establishing that respondent's actions posed an imminent danger to the children's emotional and physical well-being (see Family Court Act §§ 1012[f][i][B];  1046[b][i] ).  The caseworker testified that one of the children saw respondent and the mother engage in numerous physical altercations, which frightened her.  Respondent confirmed that the children exhibited signs of fear when he and the children's mother fought.  The children's mother also testified that she and respondent had a history of hitting each other in the children's presence (see Matter of Elijah T. [Melvin G.], 154 A.D.3d 635, 636, 62 N.Y.S.3d 796 [1st Dept. 2017] ).  The record shows that, during one of the altercations, not only did the children witness the domestic violence, but the then four-year-old child also became involved in the altercation when she attempted to intervene, and respondent picked her up and threw her into a chair (see Matter of Kenny J.M. [John M.], 157 A.D.3d 593, 67 N.Y.S.3d 632 [1st Dept. 2018] ).

Respondent argues that he is the victim of the domestic violence.  However, we note Family Court's prior findings of neglect against respondent concerning the subject children and their half-siblings.  Respondent also admitted that he has not participated or completed a batterer's program, anger management, and a mental health evaluation, as previously ordered by Family Court.  Contrary to respondent's arguments, there is no basis in the record for disturbing Family Court's credibility determinations (see Matter of Frantrae W., 45 A.D.3d 412, 845 N.Y.S.2d 324 [1st Dept. 2007], lv denied 10 N.Y.3d 705, 857 N.Y.S.2d 37, 886 N.E.2d 802 [2008] ).