ALTHOUGH THERE WAS ADMISSIBLE EVIDENCE OF DOMESTIC VIOLENCE BY FATHER, THERE WAS NO ADMISSIBLE EVIDENCE THE CHILD WAS PRESENT; NEGLECT FINDING REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the admissible evidence did not support the finding that father neglected the child based on an act of domestic violence. Mother’s 911 call constituted admissible evidence of the domestic violence. But, although evidence the child was present apparently existed, it was never admitted in evidence:

A recording of a 911 call made by the mother, which was admitted into evidence without objection, was the only admissible evidence offered in support of the petition. During this call, the mother told the 911 operator that the father was harassing her and threatening her, that there were weapons in the house, including knives and guns, and that she was in fear for her life. However, no evidence was admitted in support of ACS’s [Administration of Children’s Services’] position that the children observed, were aware of, or were in close proximity to the domestic violence, and that their physical, mental, or emotional condition was impaired or was in danger of becoming impaired … . While ACS contends that the redacted ACS progress notes were admitted into evidence, and contain the children’s out-of court-statements demonstrating the children were aware of and heard the domestic violence, the progress notes, although marked for identification at the virtual hybrid hearing, were never entered into evidence, and therefore, cannot be considered. Thus, ACS failed to establish that the children’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the father’s acts of violence toward the mother … . Matter of Easton J. (Courtney J.), 2024 NY Slip Op 01810, Second Dept 4-3-24

Practice Point: To find neglect based on an act of domestic violence by father against mother there must be admissible evidence the child was present.