Admin. for Children's Servs. v. Giga P. (In re Nina P.)

180 A.D.3d 1047

118 N.Y.S.3d 247

In the MATTER OF NINA P. (Anonymous).

Administration for Children's Services, Respondent;

v.Giga P. (Anonymous), Appellant. (Proceeding No. 1)

In the Matter of Nikoloz P. (Anonymous).

Administration for Children's Services, Respondent;

v.Giga P. (Anonymous), Appellant. (Proceeding No. 2)

2019–01515

Docket Nos. N–30267/16, N–30268/16

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

Submitted - January 27, 2020

February 26, 2020

Christian P. Myrill, Jamaica, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Aaron M. Bloom and Jessica Miller of counsel), for respondent.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Diane Pazar ), attorney for the children.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the father appeals from an order of fact-finding and disposition of the Family Court, Kings County (Jacqueline D. Williams, J.), dated January 23, 2019. The order of fact-finding and disposition, insofar as appealed from, made after fact-finding and dispositional hearings, found that the father neglected the subject children.

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

The Administration for Children's Services (hereinafter ACS) commenced these related proceedings pursuant to Family Court Act article 10, alleging that the father neglected the subject children by perpetrating an act of domestic violence against the mother in the presence of the children. Evidence was presented at a fact-finding hearing that the father threw a lighter at the mother, slapped her, and broke open a chain-locked door while the children were in the home. In an order of fact-finding and disposition, the Family Court, inter alia, found that the father neglected the children. The father appeals.

" ‘A finding of neglect is proper where a preponderance of the evidence establishes that the child's physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent's commission of an act, or acts, of domestic violence in the child's presence’ " ( Matter of Ariella S. [Krystal C.], 89 A.D.3d 1092, 1093, 934 N.Y.S.2d 422, quoting Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566 ). Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding (see Matter of Jihad H. [Fawaz H.], 151 A.D.3d 1063, 1064, 58 N.Y.S.3d 478 ; Matter of Sapphire G. [Samarj L.G.], 136 A.D.3d 687, 687, 23 N.Y.S.3d 912 ). Except for certain exceptions provided by the Family Court Act, "only competent, material and relevant evidence may be admitted" at a fact-finding hearing held pursuant to article 10 of the Family Court Act ( Family Ct Act § 1046[b][iii] ).

Here, much of the evidence offered in support of the petition against the father consisted of out-of-court statements made by the mother to the responding police officer and by the child Nikoloz to the ACS caseworker. Contrary to the father's contention, the mother's out-of-court statement was admissible under the excited utterance exception to the hearsay rule. The record reflects that the mother spoke to the police officer within minutes of the act of domestic violence and was still visibly crying and shaking. The record supports the conclusion that, when she made the statement, she was still under the stress of excitement and " ‘lack[ed] the reflective capacity essential for fabrication’ " ( People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272, quoting People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 ; see People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ). Further, Nikoloz's out-of-court statement was admissible because it was sufficiently and reliably corroborated by the...