IN RE: DEANDRE T. (Anonymous)

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

IN RE: DEANDRE T. (Anonymous), et al. Rockland County Department of Social Services, Appellant; Wendell T. (Anonymous), Respondent.

Decided: August 17, 1998

RITTER, J.P., SANTUCCI, JOY and FLORIO, JJ. Patricia Zugibe, County Attorney, New City (Radhika Nagubandi, of counsel), for appellant. James T. Duggan, Carmel, for respondent. K. Jody Cucolo, New City, Law Guardian for the children.

In consolidated proceedings pursuant to Family Court Act article 10, the petitioner appeals from (1) an order of the Family Court, Rockland County (Warren, J.), entered May 9, 1997, which, sua sponte, directed that the fact-finding hearing be reopened for the purpose of permitting the petitioner to present expert evidence regarding the effect of the father's domestic violence towards the mother upon the emotional and mental condition of the children, and (2) an order of the same court, entered June 4, 1997, which, after the reopened fact-finding hearing, dismissed the petitions.

ORDERED that the appeal from the order entered May 9, 1997, is dismissed, without costs or disbursements, as the appellant is not aggrieved thereby;  and it is further,

ORDERED that the order entered June 4, 1997, is reversed, on the law, without costs or disbursements, the petitions are granted to the extent that the child Vanessa is found to be neglected and the child Deandre is found to be derivatively neglected, and the matter is remitted to the Family Court, Rockland County, for a dispositional hearing.

The issue in this case is whether proof of a pattern of domestic violence by the father against the mother witnessed by their older child is sufficient to establish neglect under Family Court Act § 1012 absent expert evidence that such violence impaired the mental or emotional condition of the child or created an “imminent danger” of such impairment.   In the order appealed from, the Family Court held that such violence alone could not be the basis of a finding of neglect and dismissed the petitions.   We reverse.

 Given the Legislature's awareness of and concern for the detrimental effects of domestic violence on children, Family Court Act § 1012(f)(i)(B) was drafted in sufficiently broad terms to encompass domestic violence as a permissible basis upon which to make a finding of neglect (see, Matter of Lonell J., 242 A.D.2d 58, 673 N.Y.S.2d 116;  see also, Matter of Billy Jean II, 226 A.D.2d 767, 640 N.Y.S.2d 326;  Matter of Tami G., 209 A.D.2d 869, 619 N.Y.S.2d 222;  Matter of Theresa CC., 178 A.D.2d 687, 576 N.Y.S.2d 937;  Matter of Michael M., 156 Misc.2d 98, 591 N.Y.S.2d 681).  Such a finding may be made without expert evidence (see, Matter of Lonell J., supra;  see, e.g., Matter of Tami G., supra;  Family Ct. Act § 1046 [b] ).  Here, the evidence presented at the hearings was sufficient to prove that the father's violent abuse of the mother in the presence of their daughter, Vanessa, resulted in impairment of the child's mental and emotional health (see, Matter of Lonell J., supra;  Matter of Theresa CC., supra;  cf., Matter of Bryan L., 149 Misc.2d 899, 565 N.Y.S.2d 969).   Moreover, on the facts presented, a finding of derivative neglect with regard to that child's sibling, Deandre, is warranted (see, Matter of Dutchess County Dept. of Social Servs. [Douglas E., III] v. Douglas E., Jr., 191 A.D.2d 694, 595 N.Y.S.2d 800).   Accordingly, we remit the matter to the Family Court, Rockland County, for a dispositional hearing.


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