Neglect is established when a preponderance of the evidence shows that the children’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and that the actual or threatened harm to the children results from the respondent’s failure to exercise a minimum degree of care in providing the children with proper supervision or guardianship.

In determining whether a parent has failed to exercise a minimum degree of care, the dispositive inquiry is whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances.

Even a single act of domestic violence may be sufficient to establish neglect if the children are present for such violence and are visibly upset and frightened by it. In conducting our review, Family Court’s factual findings and credibility determinations are accorded great weight in such a proceeding and will not be disturbed on appeal unless they lack a sound and substantial basis in the record.

At the fact-finding hearing, the caseworker testified that she had a meeting with respondent and recommended that respondent obtain mental health counseling for anger management, but respondent refused to do so and the referral was closed. The caseworker testified she had no further contact with respondent until another hotline report was received in June 2018, which alleged that respondent left the children in the City of Binghamton, Broome County with an unknown person.

The caseworker testified that, while she was investigating this report, there were two incidents during which respondent became enraged. The first incident occurred a few days after the report was received, when respondent called the caseworker to her residence because the grandmother obtained temporary custody of the son and was attempting to pick him up.

According to the caseworker, when she explained that respondent had to comply with the order, respondent became upset and started yelling, cursing and making threats to cause the caseworker bodily harm – to the point that the police were called to deescalate the situation and facilitate the custody exchange of the son to the grandmother.

The caseworker described the son as having become “very visibly upset” and “hysterical” as he began to cry and shake. The second incident occurred in August 2018, when respondent became upset at the grandmother during a custody exchange and threw a coat hanger at the grandmother, striking her on the shoulder; the grandmother was carrying the daughter at the time she was struck.

The grandmother also testified at the fact-finding hearing, corroborating the caseworker’s testimony about the two incidents and adding additional details as to the second incident. Specifically, the grandmother testified that, before throwing the hanger during the August 2018 exchange, respondent was screaming at her and telling her to “go die” and that she needs to kill herself. The grandmother further explained that, had she not turned around, the thrown hanger would have hit the daughter in the back of the head.

Relating to the substance of the hotline report, the grandmother testified that she had received a telephone call at 4:00 a.m. telling her that she needed to drive to Binghamton to pick up the children, otherwise they would be left in a hotel. The grandmother further explained that, when she arrived at a fast-food parking lot to pick up the children, they were with individuals unknown to the grandmother and respondent had already left on a bus trip to New York City.

A caseworker with petitioner’s Children and Family Services unit (hereinafter CFS) also testified about her in-person interactions with respondent, stating that respondent swore, yelled and became “verbally aggressive” toward her on several occasions when the caseworker tried to discuss topics related to her case – including in the presence of the children. Several members of respondent’s family testified – some corroborating the testimony of the June 2018 incident and respondent’s angry outbursts in front of the children, others disagreeing or limiting the outbursts to only an isolated incident or not at all.

For her part, respondent testified that she was participating in mental health services to deal with her anger management and intended to complete same.

In our view, Family Court’s finding that petitioner established neglect by a preponderance of the evidence is supported by a sound and substantial basis in the record. There is ample evidence in the record that respondent’s anger issues and violent outbursts occurred in the presence of her children, were witnessed by them and caused them to become visibly upset.

This included an incident where respondent threw a coat hanger at the grandmother during an exchange, and a single act of domestic violence is sufficient to support a finding of neglect, including an act of domestic violence between a grandmother and a mother while a child is being held by one of them. Further, considering the testimony relating to the incident where the grandmother was forced to drive to another county to pick up the children from a group of strangers after respondent stated that the children would be left at a hotel while she went on a trip, we are satisfied that, affording Family Court’s credibility determinations great weight, the evidence demonstrated that respondent’s inability to provide reasonable care for the children was impairing their well-being.

Matter of Ja’Sire FF., – NYS3d – , 2022 WL 1786653 (3rd Dep’t. 2022)

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