Matter of Isabella S. (Robert T.)

Matter of Isabella S. (Robert T.) 2017 NY Slip Op 07533 Decided on October 26, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 26, 2017
Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing, Singh, JJ.
4815

[*1]In re Isabella S., and Another, Children under Eighteen Years of Age, Commissioner of Administration for Children's Services of the City of New York, Petitioner-Appellant,

and

Robert T., Respondent-Respondent.

Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for appellant.

Law Office of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), for appellant.

Order, Family Court, Bronx County (Alma M. Gomez, J.), entered on or about May 31, 2016, which, insofar as appealed from as limited by the briefs, dismissed the neglect petition as to Jace T., unanimously reversed, on the law and the facts, without costs, to enter a finding that respondent neglected Jace T. and remand the matter for a dispositional hearing.

Respondent is the father of Jace T. and a person legally responsible for the care of Isabella S. The mother testified that the father choked her in the presence of six-year-old Isabella and only a couple of feet away from where then four-month-old Jace was sleeping in his crib. The mother's testimony was supported by shelter records; the father did not testify. Family Court found the mother's testimony was credible and supported a finding that the father neglected Isabella. The same evidence also supports a finding that the father neglected Jace.

Even a single instance of domestic violence may be a proper basis for a finding of neglect, so long as it "occurred in the child's presence and resulted in physical, mental or emotional impairment or imminent danger thereof" (Matter of Emily S. [Jorge S.], 146 AD3d 599, 600 [1st Dept 2017]; Matter of Allyerra E. [Alando E.], 132 AD3d 472, 473 [1st Dept 2015], lv denied 26 NY3d 913 [2015]). Jace was in imminent danger of physical impairment due to his close proximity to the violence (see Matter of Kelly A. [Ghyslaine G.], 95 AD3d 784, 784 [1st Dept 2012]; Matter of Gianna C.-E. [Alonso E.], 77 AD3d 408, 408 [1st Dept 2010]). The father's assertion that Jace was in "another part of" or "somewhere else in" the one-room [*2]residence at the time of the attack is unsupported by the record.

We have considered the remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 26, 2017

CLERK