SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

183 

CAF 10-02262 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.

 

IN THE MATTER OF ILONA H. 

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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

ELTON H., RESPONDENT-APPELLANT.

BERNADETTE M. HOPPE, BUFFALO, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF

BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR ILONA H. 

 

Appeal from an amended order of the Family Court, Erie County

(Patricia A. Maxwell, J.), entered September 23, 2010 in a proceeding

pursuant to Family Court Act article 10. The amended order adjudged

that respondent neglected the subject child. 

It is hereby ORDERED that the amended order so appealed from is

unanimously reversed on the law without costs and the petition is

dismissed. 

Memorandum: Respondent father appeals from an amended order

adjudging that he neglected the child who is the subject of this

proceeding. The father contends that petitioner failed to establish

that domestic violence occurred in the presence of the child and that

the child was at risk of being harmed during the alleged domestic

violence. We agree with the father, and we therefore reverse the

amended order and dismiss the petition.

We must give great deference to Family Court’s assessment of the

credibility of the witnesses at the fact-finding hearing (see Matter

of Tina L., 255 AD2d 868), and its decision “will not be disturbed

unless [it] lack[s] a sound and substantial basis in the record”

(Matter of Kaleb U., 77 AD3d 1097, 1098). To establish neglect, the

petitioner must demonstrate by a preponderance of the evidence “first,

that [the] child’s physical, mental or emotional condition has been

impaired or is in imminent danger of becoming impaired and second,

that the actual or threatened harm to the child is a consequence of

the failure of the parent . . . to exercise a minimum degree of care

in providing the child with proper supervision or guardianship”

(Nicholson v Scoppetta, 3 NY3d 357, 368; see Family Ct Act § 1012 [f]

[i]; § 1046 [b] [i]). Although the “exposure of the child to domestic
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CAF 10-02262 

violence between the parents may form the basis for a finding of

neglect” (Matter of Michael G., 300 AD2d 1144, 1144), “exposing a

child to domestic violence is not presumptively neglectful. Not every

child exposed to domestic violence is at risk of impairment”

(Nicholson, 3 NY3d at 375). Indeed, a single incident of domestic

violence that the child did not witness may be insufficient to

establish neglect (see e.g. Matter of Eustace B., 76 AD3d 428; Matter

of Christy C., 74 AD3d 561, 562; cf. Matter of Ariella S., 89 AD3d

1092, 1093-1094; Matter of Batchateu v Peters, 77 AD3d 1366).

Here, the only evidence of domestic violence presented by

petitioner was that the father struck the child’s mother on one

occasion when the child was eight months old. The father testified at

the fact-finding hearing that the altercation occurred outside the

presence of the child. Thus, we conclude that petitioner did not

establish by a preponderance of the evidence that the physical, mental

or emotional condition of the child had been placed in danger of

impairment as a result of the father’s conduct (see Family Ct Act §

1012 [f] [i] [B]; § 1046 [b] [i]; Eustace B., 76 AD3d 428; Christy C.,

74 AD3d at 562). There is no evidence in the record indicating that

the domestic violence was anything other than an isolated incident

with no negative repercussions on the child’s well-being. A neglect

determination may not be premised solely on a finding of domestic

violence without any evidence that the physical, mental or emotional

condition of the child was impaired or was in imminent danger of

becoming impaired (see Nicholson, 3 NY3d at 368-369). 

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court