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

IN RE: KRYSTAL R., Petitioner–Respondent, v. KRISTON L., Respondent–Appellant.

IN RE: Kai L., A Child Under Eighteen Years of Age, etc., Kriston L., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.


Decided: November 12, 2019

Gische, J.P., Tom, Kapnick, Kern, Moulton, JJ. Steven N. Feinman, White Plains, for appellant. Andrew J. Baer, New York, for Krystal R., respondent. Zachary W. Carter, Corporation Counsel, New York (Cynthia Kao of counsel), for Administration for Children's Services, respondent. Larry S. Bachner, New York, attorney for the child.

Order of disposition, Family Court, Bronx County (David J. Kaplan, J.), entered on or about July 31, 2018, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about July 31, 2018, which found that respondent father neglected the subject child, unanimously affirmed, without costs. Order, same court and Judge, entered on or about July 31, 2018, which denied respondent-father's motion to vacate an order of protection entered against him after an inquest conducted upon his default, unanimously affirmed, without costs.

Respondent failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]). Although respondent contended that he was evicted a month before the hearing and subsequently lost his phone, he also admitted that he “simply forgot the date,” which does not constitute a reasonable excuse (see Matter of Jenny F. v. Felix C., 121 A.D.3d 413, 993 N.Y.S.2d 698 [1st Dept. 2014]). He was present during the scheduling of the hearing, and it was his responsibility to verify the date with his attorney or the Family Court itself (see e.g. Matter of Yadori Marie F. [Osvaldo F.], 111 A.D.3d 418, 419, 974 N.Y.S.2d 71 [1st Dept. 2013]). Further, the court properly denied respondent's attorney's request for an adjournment where the attorney failed to provide any explanation for respondent's failure to appear (see Matter of Keith H. [Logann M.K.], 113 A.D.3d 555, 556, 980 N.Y.S.2d 14 [1st Dept. 2014], lv denied 23 N.Y.3d 902, 2014 WL 1775882 [2014]). Since respondent failed to offer a reasonable excuse for his default, we need not determine whether he offered a meritorious defense to the family offense petition (see Matter of Yadori at 419, 974 N.Y.S.2d 71); in any event, he did not.

Further, a preponderance of the evidence supports the Family Court's finding that respondent neglected the subject child by engaging in multiple verbal and physical altercations with the child's mother in the child's presence and inflicting physical violence upon the mother and causing an injury to the child, on at least one occasion (see Terrence B. [Terrence J.B.], 171 A.D.3d 463, 95 N.Y.S.3d 802 [1st Dept. 2019]). Impairment or an imminent danger of impairment to the physical, mental, or emotional condition of the child could be inferred from the respondent's conduct because the child was in close proximity to violence directed against his mother, even absent evidence that he was emotionally impacted by it long term (Matter of Andru G. [Jasmine C.], 156 A.D.3d 456, 64 N.Y.S.3d 886 [1st Dept. 2017]).