I. INTRODUCTION This written decision formally memorializes the oral decision I gave on the record on October 28, 2021. For the reasons described below, I find that ACS proved by a preponderance of the evidence that Mr. Sidki C. neglected the subject children by (1) committing repeated acts of violence against the non-respondent mother, Ms. Diamond B., including pushing her and punching her; (2) on or about April 13, 2021, punching Ms. Diamond B., in the stomach and causing her to suffer visible and significant injuries to the face and arm, as well as to become unconscious on the floor, while the children were in the next room; and (3) at the end of that incident on April 13, 2021, in the middle of the night, fleeing the home while Ms. Diamond B., was incapacitated on the floor and the children still in the home without supervision. The children are neglected children as defined by Family Court Act Section 1012. II. PROCEDURAL POSTURE The New York City Administration for Children’s Services (“ACS”) filed this Article 10 petition on April 19, 2021, alleging that the respondent, Mr. Sidiki C., neglected the subject children. At intake, I released the children to their non-respondent mother, Ms. Diamond B., under supervision and with conditions. Counsel advised me that in the past, a Criminal Court had issued an Order of Protection directing that Mr. Sidiki C. have no contact with Ms. Diamond B., and that this Order was still in effect. I issued a new Temporary Order of Protection, directing that Mr. Sidiki C. have no contact with Ms. Diamond B., or the children, except for visitation with the children as ordered by me. On April 29, 2021, Mr. Sidiki C. appeared in court (virtually, via the Microsoft Teams platform) and, through counsel, accepted service of the petition. There were several court appearances in advance of the trial, and I presided over the trial on October 28, 2021. The trial concluded during that same appearance, and I gave an oral decision on the record that same day. In addition, I issued a Final Order of Disposition. III. THE TRIAL At trial, ACS called two witnesses: (1) Child Protective Specialist (“CPS”) Ms. A.; and (2) Ms. Diamond B. In addition, ACS offered into evidence Petitioner’s Exhibits (“Pet’s Ex.”) 1-3 — photographs taken on April 15, 2021, depicting injuries to Ms. Diamond B. — and these were admitted into evidence without objection. The Attorney for the Child (“AFC”) did not present a case, nor did Mr. Sidiki C. Counsel gave their summations, and the Attorney for the Child did not support a neglect finding. IV. CREDIBILITY AND FACTUAL FINDINGS A. CPS Ms. A. I found CPS Ms. A’s testimony fully credible. She answered questions in a straightforward manner, displayed no bias towards any side of the case, and was corroborated by the other evidence in the case, including the photos and Ms. Diamond B’s testimony. In fact, neither the AFC nor Mr. Sidki C.’s attorney asked her any questions at trial. She was assigned to investigate this case on April 15, 2021 and saw Ms. Diamond B., and both children that same day at a “secure location” where Ms. Diamond B. was staying. CPS Ms. A. observed that Ms. Diamond B. had visible injuries on her cheek, face and arm. CPS Ms. A. took photographs of these injuries, which comprised Pet’s Exs. 1-3. CPS Ms. A. was not able to interview the children due to their young age, but both children appeared to be “acting relatively normal.” B. Pet’s Exs. 1-3 Pet’s Ex. 1 depicted one side of Ms. Diamond B.’s face, including a round discoloration or bruise to the cheek. This mark appeared circular, perhaps 1.5-2 inches in diameter, with a darker yellowish/reddish portion towards the bottom. Pet’s Ex. 2 depicted the other side of Ms. Diamond B.’s face, including two distinct injuries. The first is a red mark, approximately one half-inch in diameter, with scratches or healing marks within the mark. The second injury is a linear red mark on her forehead, extending from approximately one inch above her eyebrow into her hairline. The mark appears to be approximately two inches in length, and its width varies from a few millimeters to a half-inch. It, too, has scratches or healing marks within it. Pet’s Ex. 3 depicted the lower portion of Ms. Diamond B.’s face — the same side as shown in Pet’s Ex. 1 — as well as her upper arm. The mark to the lower part of her face extends beyond the circular bruise depicted in Pet’s Ex. 1, and it appears more yellowish/brownish. In addition, this picture shows discoloration next to her mouth and further along her cheek. Her arm has a red circular bruise, approximately one inch in diameter, with more redness in the upper right section of the mark. It is noteworthy that the injuries are sizable and plainly visible, even two days after the incident. And given their locations, these injuries would have been visible to anyone who saw Ms. Diamond B. C. Ms. Diamond B. ACS called Ms. Diamond B. as their final witness. The AFC asked her questions on cross examination, but Mr. Sidki C.’s attorney did not. I found Ms. Diamond B. credible in part and not credible in others. She acknowledged a bare minimum of information relating to the events in question, avoided answering most questions directly, and provided vague answers plainly designed to minimize what happened. In addition, some of the information she provided was contradicted by the other evidence in the case, including her own words, and common sense. Ms. Diamond B. testified that Mr. Sidki C. was the father of the subject children and that they all lived together at some point in the past. She described that on April 13, 2021, they were no longer living together, but she and Mr. Sidki C. got into an argument at her home. She then went to the bedroom to check on the children, and Mr. Sidki C. followed behind her. She pushed him out of the room, whereupon he punched her in the stomach. She testified that, “From there I remember I woke up from the floor to attend to my children that were at the door.” She also stated that as she regained consciousness, she observed Mr. Sidki C. leaving the home and a neighbor or neighbors entering the home. Ms. Diamond B. testified that she went to the hospital the next day because her head was hurting, and she assumed that Mr. Sidki C. “hit me on my head.” She then described another incident, from some point “this year,” where Mr. Sidki C. punched her in the eye, causing her eye to be “a little black and blue.” After that, she sought an Order of Protection “to keep him from coming near me.” She also remembered an incident “very long” ago where an argument got “a little bit” physical and Mr. Sidki C. held or pushed her against a wall. She did not remember if she had ever called the police on Mr. Sidki C. — despite having gotten an Order of Protection after the punch to the face — nor if she obtained an Order of Protection in relation to the wall-pushing incident. Ms. Diamond B.’s testimony was very brief, and she claimed not to remember almost any details about the incidents themselves or the surrounding circumstances. In response to questions, she stated that she did not remember why Mr. Sidki C. was at the home on the night of April 13, what their argument was about, where on her stomach he punched her, or whether that punch hurt. She testified that she did not remember if Mr. Sidki C. was yelling loudly during the argument, although she volunteered that he “doesn’t shout.” She claimed that she did not notice, or did not remember, suffering the injuries depicted in Pet’s Exs. 1-3 “until I saw the pictures” in the courtroom during the trial. Upon being shown those photographs during her testimony, Ms. Diamond B. again claimed that she did not remember how she got the injuries or whether the children ever saw the injuries. She did acknowledge remembering that CPS Ms. A took photographs of the injuries, but she did not remember speaking to CPS Ms. A about the injuries nor what she said to CPS Ms. A, if anything, about the incident itself. I note that throughout the proceedings in this case and at trial, Ms. Diamond B. always presented as intelligent and lucid. She testified at trial in a very matter-of-fact manner, without any emotion or affect. When answering questions, rather than appearing to genuinely attempt to think about and remember certain things, she was quick to assert her inability to recall. Moreover, her lack of memory seemed heightened when asked about topics that might expose Mr. Sidki C. to liability in the case. On the other hand, when given a chance to exculpate Mr. Sidki C., her memory got stronger. For example, when describing the wallpushing incident, Ms. Diamond B. clearly remembered that Ian was not yet born and that Nevaeh was not present because she was at her grandmother’s in Brooklyn. Likewise, when asked about how hard Mr. Sidki C. punched her on April 13, she declared that it was “not that hard.” In addition, Ms. Diamond B.’s testimony was internally inconsistent in many areas. She tried to give minimalistic answers to almost every question, yet she changed her testimony when key issues were explored. This was most apparent in her statements about the children’s potential exposure to the events of April 13, 2021. On direct, she stated that she and Mr. Sidki C. were arguing; that she entered the bedroom to check on the children; that Mr. Sidki C. followed her into the bedroom; that she pushed Mr. Sidki C. out; and then Mr. Sidki C. punched her in the stomach. Initially, she did not mention where in the apartment the punch happened, did not say that there was any pause or break in the sequence of events, and did not say that anyone closed the bedroom door. However, when the questioning homed in on the children’s exposure to the incident, she stated that the bedroom door was closed, and the children were asleep the entire time. When asked if, generally, she is able to hear the children when the children are in the bedroom and she is elsewhere in the apartment, Ms. Diamond B. did not answer the question directly. Rather, she stated, “I leave the door open. Like if they’re awake. So I will be able to hear them and they will come out and get me.” Later in her testimony, she acknowledged that the bedroom shares a wall with the living room area, and that the kitchen is only a short distance away. There were other inconsistencies in her description of what happened when she woke up from unconsciousness. Her initial testimony was that after being punched in the stomach, “From there I remember I woke up from the floor to attend to my children that were at the door.” [Emphasis added.] Importantly, this free narrative statement was at the very beginning of her direct examination, and it suggests that the children were awake and near her while she was injured on the floor. But later, as the questioning about the children continued, Ms. Diamond B. testified that upon regaining consciousness, she went into the bedroom where the children “were just waking up. I had to wake them up.” Indeed, even that comment is arguably internally inconsistent. In any event, she testified that she came to at around 5:00 a.m. or 6:00 a.m., and that Mr. Sidki C. was leaving while neighbors were coming in. In other words, whatever occurred was loud or disturbing enough to alert neighbors in another apartment and cause them to rush in; yet Ms. Diamond B. insisted that the children were asleep through all of it from only a few feet away. Viewed in light of all of the evidence in the case, Ms. Diamond B.’s testimony demonstrates a distinct effort to minimize Mr. Sidki C.’s actions and their effect on the children.1 Under all of the facts and circumstances, her purported failure to remember so many important details about such significant events in her life from only six months earlier was not credible. She was not asked about her motivation or position during her testimony, and experience and common sense dictate that there might be many reasons for her bias. It might stem from love of Mr. Sidki C.; fear of Mr. Sidki C.; negative feelings about ACS, the court system, and/or these proceedings; shame or embarrassment; a desire to deal with this situation on her own; a desire to end the case and its effects on her and her family; or many other reasons. But whatever the reason, the evidence in the case proves that Mr. Sidki C. inflicted severe violence on her that night and that her children were likely awake for at least parts of it. In addition, in the aftermath of the incident on April 13, 2021, and in the days after, the children certainly would have seen the acute injuries on Ms. Diamond B.’s face. D. Negative Inference for Mr. Sidki C.’s Failure to Testify Mr. Sidki C. was present for the trial and represented by counsel. He chose not to testify, and I draw the strongest negative inference against him for failing to do so. See In re Nicole H., 12 AD3d 182 (1st Dept. 2004); Nassau County Dep’t of Social Servs. ex rel. Dante M. v. Denise J., 87 NY2d 73 (1995). V. LEGAL FINDINGS A. Legal Standards 1. Domestic Violence Cases Pursuant to FCA §1012(f)(i), a subject child is neglected when their “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 or other person legally responsible for his care to exercise a minimum degree of care.” It has been long held that even though FCA §1012(f)(i) enumerates various specific examples of neglectful behavior, a finding of neglect can be based on “any acts of a similarly serious nature requiring the aid of the court.” FCA §1012(f)(i)(B). See Matter of Lonell J., 242 AD2d 58 (1st Dept. 1998). In that case, the Appellate Division specifically held that domestic violence can be a cause of action in neglect cases. Id. at 62. At the same time, case law makes clear not all domestic violence amounts to neglect under the Family Court Act. Rather, there must be a nexus between the violence and an imminent risk of harm to the children. See Nicholson v. Scoppetta, 3 NY3d 357 (2004); In re Daphne G., 308 AD2d 132 (1st Dept. 2003). Where domestic violence occurs in close proximity to the subject children, this places them “at imminent risk of emotional and physical impairment” under FCA §1012. Matter of Jalicia G., 130 AD3d 402 (1st Dept. 2015); Matter of Angie G., 111 AD3d 404 (1st Dept. 2013). In both of those cases, it appears that the children were not in the room where the violence occurred, but rather in a room close by. Likewise, neglect has also been found for incidents of domestic violence where the children did not directly witness the violence but were subjected to its effects — such as witnessing injuries, seeing blood, or hearing their parent scream for help. See Matter of Moises G., 135 AD3d 527 (1st Dept. 2016) (a child heard the mother screaming for help, and the mother was hospitalized as a result of the incident); see also Matter of Kadyn J. (Kelly M.H.), 109 AD3d 1158 (4th Dept. 2013) (children were asleep for a particular incident, but they were “traumatized” by seeing blood). Finally, courts have found that even a single incident of domestic violence can support a finding of neglect when a parent’s judgement was impaired, and the child was exposed to a risk of substantial harm. See e.g., Matter of Jared S. (Monet S.), 78 AD3d 536 (1st Dept. 2010). 2. Leaving the Children Unattended with an Incapacitated Parent Neglect has also been found under FCA §1012(f)(i)(B) where a parent leaves a child with another person who is not capable of caring for the child. In In re Lakshmi G., 110 AD3d 640 (1st Dept. 2013), the First Department found neglect where the father left the child with the mother, whom the father knew to be suffering from hallucinations and to be a danger to the child. Id. at 641. Similarly, in Matter of Nicholas M., 89 AD3d 1087 (2nd Dept. 2011), the Appellate Division found neglect where the respondent “left the child alone with the child’s mother while she was intoxicated.” Id. B. The Preponderance of the Evidence Proves Neglect in this Case I find that ACS proved by a preponderance of the evidence that Mr. Sidki C. neglected the subject children. The evidence proves that Mr. Sidki C. committed multiple acts of domestic violence on Ms. Diamond B., including the April 13, 2021 severe beating that left her unconscious and injured on the floor. Even if I were to accept Ms. Diamond B.’s position, that the children were asleep in the next room a few feet away, Mr. Sidki C.’s conduct still placed them in imminent risk of harm. Indeed, the violence created enough of a disturbance that neighbors from an entirely different apartment felt compelled to rush into the home in response, making it very likely that the children, a few feet away, heard or felt the incident. However, I also find that the totality of the evidence proves that the children were awake for at least part of the incident, particularly when Ms. Diamond B. awoke from unconsciousness. In addition, given the nature and extent of Ms. Diamond B.’s injuries, the evidence proves that the children saw her with those injuries in the aftermath of the incident and in the days after. Finally, the evidence proves that even if the children were asleep for the entire incident and its aftermath on April 13, 2021, Mr. Sidki C. neglected the children by fleeing the apartment at 5:00am or 6:00am while Ms. Diamond B. was unconscious and severely injured on the floor. As of that date, Nevaeh was just three years old, and Ian was less than one. And although one or more neighbors may have entered the apartment as Mr. Sidki C. left, this in no way constitutes ensuring the children’s safety under the circumstances. There is no evidence as to who these people were, their ages or relationship to the family, their capacity or availability to care for the children at that moment, or that Mr. Sidki C. showed any concern for the safety of the children. V. CONCLUSION For the reasons stated on the record on October 28, 2021 and those above, the children are neglected children under Family Court Act §1012. PURSUANT TO §1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY (30) DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE (35) DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF COURT, OR THIRTY-FIVE (30) DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: December 7, 2021
