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EVIDENCE THE CHILD WITNESSED A PHYSICAL ALTERCATION BETWEEN MOTHER AND FATHER WAS SUFFICIENT FOR A FINDING FATHER NEGLECTED THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court in this child neglect proceeding, determined there was sufficient admissible evidence to find father had neglected the child. Although hearsay statements by mother were properly deemed inadmissible, the evidence that the child witnessed a physical altercation between mother and father was sufficient:

“[E]xposing a child to domestic violence is not presumptively neglectful”… However, 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 placed in imminent danger of harm by reason of the failure of the parent or caretaker to exercise a minimal degree of care … . Except for certain exceptions provided for in the Family Court Act, only competent, material, and relevant evidence may be admitted at a fact-finding hearing held under [*2]article 10 of the Family Court Act … .

… [R]elevant evidence, which included, … the mother’s in-court admission that she and the father engaged in a physical altercation in the child’s presence, as well as other competent, material, and relevant evidence establishing a history of domestic violence between the parents, established that the child’s physical, mental, or emotional condition was in imminent danger of being impaired as a result of the father’s failure to exercise a minimum degree of care … . Matter of Meeya P. (Anthony C.), 2018 NY Slip Op 08938, Second Dept 12-26-18

 

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