On October 10, 2019, the Court issued a decision on this Article 10 neglect petition, which alleges that Respondent, “RI,” the father of the subject child “AI” (dob 9-3-13), engaged in acts of domestic violence against nonrespondent “CB,” AI’s mother, in AI’s presence. The Court found, following an inquest, that ACS failed to establish that Respondent engaged in domestic violence against CB in AI’s presence on or about December 16, 2017, as alleged in the petition. The Court further found that the petition did not include any allegations about an incident that allegedly occurred during the summer of 2016, about which CB testified, and no motion to conform the pleadings to the proof was timely made. The Court invited counsel to make any motions to renew and reargue orally in view of the undersigned’s imminent departure from the bench. The petitioner, the Administration for Children’s Services, (“ACS” or the “Petitioner”) made such motion; Respondent and the Attorney for the Child objected; and the Court took the matter under advisement. In considering the application of ACS to renew and reargue the Court’s decision and upon review of the petition and the FTR recording, the Court grants ACS’s motion to renew or reargue and concludes that it was in error in finding that the petition did not include an allegation of domestic violence by RI against CB in the summer of 2016. In fact, the petition does allege that Respondent slapped the mother in the presence of AI during the summer of 2016. Based upon the Court’s review, I am issuing this Amended Fact-Finding Decision and Order. The petition filed in this proceeding alleges that, on or about December 10, 2017, RI, while intoxicated, perpetrated acts of domestic violence against CB in AI’s presence. The petition also alleges that RI engaged in acts of domestic violence against CB during the summer of 2016 in AI’s presence. “Neglected Child” Section 1012(f) of the Family Court Act (“FCA”) defines a “neglected child” in relevant part as “a child less than eighteen years of age “(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent…to exercise a minimum degree of care … (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment…or by any other acts of a similarly serious nature requiring the aid of the court…” Engaging in acts of violence in the presence of a child has long been held to be a “similarly serious” act that will support a finding of neglect if there is proof that the child has suffered actual harm or was placed in imminent risk of harm to his or her physical, mental, or emotional condition as a result of the domestic violence (see, In re Deandre T., 253, AD2d 497, 498 [2d Dept 1998]; Matter of Aliyah T. (Jaivon T.), 174 AD3d 722, 724 [2d Dept 2019] ["although 'exposing a child to domestic violence is not presumptively neglectful" (Nicholson v. Scoppetta, 3 NY3d 357, 375 [2004], a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually or imminently harmed by reason of the parent or caretaker’s failure to exercise a minimum degree of care (id. at 372; accord Matter of Nah-Ki B. [Nakia B.], 143 AD3d 703, 706, 38 N.Y.S.3d 593; Matter of Mohammed J. [Mohammed Z.], 121 AD3d at 994; Matter of Kiara C. [David C.], 85 AD3d 1025, 1026, 926 N.Y.S.2d 566). Aside from testimony by an ACS caseworker to authenticate ACS Progress Notes and excerpts from the Progress Notes, the only evidence presented by ACS was the testimony of CB. CB testified that on December 10, 2017, RI returned AI from a visit; that he was angry because AI told him that CB or her friend told the child that she was on Santa’s “naughty list”; that AI went to her room in the back of the apartment about 30 feet away from the front door; that CB and RI were in the hallway of the apartment building by the apartment’s front door; that RI began hitting CB on her arms, head, and legs. CB further testified that AI did not observe RI hitting her on December 10, 2017, that she could not have heard the altercation as it took place in the hallway of the apartment building, while AI was some distance away in the back of the apartment in her room. ACS did not present any evidence that AI observed any marks or bruises on her mother after the incident or any evidence to contradict CB’s testimony. Nor did ACS present any other evidence that AI’s physical, mental, or emotional condition was actually harmed or placed in imminent danger of being harmed as a result of the altercation on December 10, 2017, which she did not see or hear or otherwise experience. CB also testified that she and RI got into a verbal argument during the summer of 2016 outside the building, and that RI slapped her across the face. She also testified that AI was standing “right there” and that the child cried. On cross examination, CB clarified her testimony to say that AI was present for the verbal argument, but that a friend, who was also present, took AI inside while the argument continued. CB insisted that AI never observed any physical violence between her and RI. No evidence was produced to suggest that CB was not testifying truthfully or that she had any motive to lie. The Court of Appeals, in Nicholson v. Scoppetta, 3 NY3d 357 [2004] explained in detail what is required under the statute to sustain a finding of neglect, stating that, “[A] party seeking to establish neglect must show, by a preponderance of the evidence…first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, 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…. The first statutory element requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child…. This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention [into private family life], will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior…Imminent danger…must be near or impending, not merely possible. In each case, additionally, there must be a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment.” 3 NY3d at 368-69 (citations omitted.) Thus, the first element, the sine qua non for a finding of neglect is proof of harm or imminent risk of harm to the subject child. A finding that a child is abused or neglected must be supported by a preponderance of the competent, material, and relevant evidence (FCA 1046[b][i] and [iii]). A child’s out-of-court statements relating to allegations of abuse or neglect are admissible, but will only support a finding of neglect if corroborated by other evidence (FCA §1046 (a)(vi); Matter of Kassandra V. (Sylvia L.), 90 AD3d 940 [2d Dept 2011]). A child’s out-of-court statements regarding abuse or neglect can be corroborated by a sibling’s out-of-court statements in which he or she describes similar incidents of abuse or neglect (Matter of Jeshaun R. v. Ean R., 85 AD3d 798 [2d Dept 2011]). Proof that the respondent “repeatedly misuses a drug or drugs or alcohol to the extent it has or ordinarily would have the effect of producing in the user a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence or a substantial impairment of judgment or irrationality” (FCA §1046(a)(iii)) establishes a prima facie case of neglect without proof of actual or imminent danger of physical, mental, or emotional impairment to a subject child (see Matter of Vita C. (Oksana C.), 138 AD3d 739, 740 [2d Dept 2016]; Matter of Nasiim W. [Keala M.], 88 AD3d 452, 453 [2d Dept 2011]; Matter of Arthur S. [Rose S.], 68 AD3d 1123, 1124 [2d Dept. 2009]; Matter of Paolo W., 56 AD3d 966, 967, [2d Dept 2008]; Matter of William T., 185 AD2d 413, 415 [2d Dept 1992]). These evidentiary rules must be met even upon inquest (In the Matter of MHP and MP, 45 Misc 3d 1224[A], 5 NYS3d 328 (Fam. Ct., Kings County 2014]; In the Matter of M/B Child, 8 Misc 3d 1001(A) [Fam. Ct., Kings County 2005]; see also In re Tammie Z., 66 NY2d 1, 3 [1985]; Matter of Amber C., 38 AD3d 538, 540 [2d Dept. 2007]; In re Cassandra M., 260 AD2d 961 [3d Dept. 1999]). The Second Department has issued conflicting rulings in neglect proceedings involving allegations of domestic violence. Numerous decisions have held that there can be no finding of neglect unless the child observes, in some way, and is impacted by the domestic violence. For example, in Matter of Harper F-L, 125 AD3d 652, 655 [2d Dept 2015], the Court reversed the Family Court’s findings of neglect based on two incidents of domestic violence, one of which occurred in the home while the then five-week-old child was in a different room, and later incident, which occurred outside in the presence of the then seven-month-old child. The Court, citing Nicholson, held that to sustain the finding of neglect, the child must have seen or been aware of the incident, and there was no evidence that the child saw the first incident or was aware of the second. (See also Matter of Malachi, 164 AD3d 794, 795-96 [2d Dept. 2018] [ upholding finding of neglect of one child who was present when the father slapped the mother; reversing finding as to child who was not present]; In the Matter of Christopher D.B., 157 AD3d 944, 948-49 [2d Dept. 2018] [finding of neglect of 10-monthold child in mother's arms when the respondent father pushed her causing her and the child to fall upheld; dismissal of the petition as to two other children who were not present and did not witness the DV also upheld]; Matter of Kiana M., 123 AD3d 720, 721 [2d Dept. 2014] [no evidence that the children witnessed the father push the mother or that the children's physical, mental, or emotional conditions were impaired or at imminent risk of impairment]; In re Larry O., 13 AD3d 633 [2d Dept 2004] [no neglect resulting from DV by the father when the subject child was asleep in a different room when the incident occurred]; In re Davin G., 11 AD3d, 462 [2d Dept. 2004] [reversing neglect finding, holding that the DV did not occur in the children's presence]; In the Matter of Tali W., 299 AD2d 413, 414 [2d Dept. 2002] [no evidence that the act of domestic violence, which Respondent admitted, took place in the presence of the child]; accord In the Matter of Jordyn WW, 2019 Slip Op 07460 [3d Dept. Oct. 17, 2019]; Matter of Imani O., 91 AD3d 466, 467 [1st Dept. 2012]; Matter of Alyssa OO v. Andrew PP, 68 AD3d 1158, 1160 [3d Dept 2009]; In re Daphne G. (308 AD2d 132, 135 [1st Dept. 2003]). In Daphne G., the First Department, citing with approval the Second Department’s ruling in Matter of Tali, infra, reversed the Family Court’s finding of neglect, holding that the respondent-father’s assault of the mother, out of the child’s presence, “did not expose the child to a substantial risk of harm so as to constitute neglect,…there is no nexus between the domestic violence and the neglect finding (id. at 135). The Court went on to state that while a person who commits acts of domestic violence may well be considered capable of creating a substantial risk to a child, “a plain reading of the statute does not lend itself to so expansive an interpretation as to include the capacity to inflict harm” which could subject “anyone found to have committed an act of domestic violence…to a finding of child neglect irrespective of when the domestic violence occurred and whether the child was even exposed to it” (id, emphasis added.). The Second Department and other Courts have also held that, even if the child did not actually see the domestic violence, a finding of neglect may be supported by evidence that the child heard the violence while it was being perpetrated, observed the aftermath of the violence, was in close proximity to the violence, or was otherwise impacted by the violence (see Matter of Jihad H. (Fawaz H.), 151 AD3d 1063, 1064 [2d Dept. 2017] [ DV in the presence of two of the children and within the hearing of the third child]; Matter of Carmine G., 115 AD3d 594 [1st Dept. 2014] [child heard the parents engaging in a physical altercation]; In re Andru G., 156 AD3d 456 [1st Dept 2017] [children in "close proximity" to the violence]; Matter of Moises G., 135 AD3d 527 [1st Dept. 2016] [although the children were in a different room while the violence was occurring, the children heard their mother's screams as the father stabbed her and experienced their mother being hospitalized for a month after the assault]; Matter of Kadyn J., 109 AD3d 1158, 1158 [4th Dept. 2013] [although children were in a different room from where the violence between the respondent-mother and her boyfriend occurred, they were present when the police arrived and they observed copious amounts of blood apparently shed by the boyfriend during the altercation --- blood that they were forced to clean up the next day]; Matter of Crystal R., 2008 NY Misc LEXIS 7519 [S. Ct. Suffolk County 2008] [the children's observation of the aftermath of the domestic violence perpetrated against their mother, including observing blood on the mother's head and hand and hearing her cry established that the children were actually harmed or placed in imminent risk of harm to their physical, mental and emotional condition]). The Second Department went further in Matter of Najaie C., 173 AD3d 1011[2d Dept. 2019], holding that, despite the lack of evidence that the children were present during, saw, heard, were impacted by or experienced the mother attacking their pregnant aunt or the aftermath of that conduct, “imminent danger of impairment to the physical, mental, or emotional condition of the subject children should be inferred from the mother’s egregious conduct….” (id. at 1012, emphasis added). The Court seems to conflate the egregiousness of the conduct with potential harm to the children by use of an inference. “Inference” is defined as a “truth or proposition drawn from another which is supposed or admitted to be true…. A logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts” (Black’s Law Dictionary [ Abridged 6th ed. 1991] [inference]). “Presumption” is defined as “an inference in favor of a particular fact,…a rule of law, statutory or judicial, by which a finding of a basic fact gives rise to the existence of the presumed fact…. A legal device which operates in the absence of other proof to require that certain inferences be drawn from the available evidence” (id., [presumption]). The Court of Appeals in Nicholson v. Scoppetta, emphasized that even exposing a child to domestic violence “is not presumptively neglectful” (3 NY3d at 375 (emphasis in original); “a blanket presumption favoring removal was never intended” (id. at 378); “there can be no ‘blanket presumption’ favoring removal when a child witnesses domestic violence,…particularized evidence must exist to justify that determination” (id.at 382)). In the present case, there is no evidence that AI was present during either the December 10, 2017, or the summer 2016 incidents of domestic violence. CB stressed that AI was well within the confines of the apartment and would be unable to see or hear the altercation between her and RI on December 10, 2017, in the public hallway. She also clarified her testimony that AI was present during the verbal argument between her and RI that occurred in the summer of 2016, she was removed from the scene by CB’s friend and did not witness or hear RI slap her. CB testified that she separated from RI four years ago. There was no evidence that she has any kind of a continuing relationship with RI or that she had any motive to lie about whether AI was present during the Summer 2016 incident. There was no evidence that AI witnessed any aftermath of the two domestic violence incidents or experienced any impact from either one. Other than crying when she witnessed her mother and father arguing — which, standing alone, is not a basis for a finding of neglect (Matter of Malachi, infra, 164 AD3d at 796; Matter of Alyssa OO, 68 AD3d at 1160) — there was no evidence that AI suffered any actual impairment or imminent risk of impairment as a result of either of the incidents. This Court is faced with the Second Department’s holding in Najaie C., which infers and thereby creates a judicial presumption of harm from the egregiousness of a respondent’s domestic violence, and the Court of Appeals’ insistence in Nicholson that harm may not be presumed. In these circumstances, the Court is compelled to follow Nicholson and the weight of authority in the Second Department and other appellate courts, and find that Petitioner failed to establish by a preponderance of the evidence that AI’s physical, mental, or emotional condition was impaired or placed in imminent risk of impairment as a result of either the December 10, 2017, incident or the summer 2016 incident. Therefore, the petition is dismissed. Dated: October 24, 2019
