Secured Reversal Of Child Neglect Adjudication That Was Based Upon Domestic Violence

Matter of K. S. (Dyllin S.), 180 AD3d 468 (1st Dept. 2020)

In this child neglect matter, I secured a reversal of Family Court’s finding of neglect against the father based upon a domestic violence incident when the child was present in the home.  The First Department accepted my argument that Family Court’s finding that the father neglected the subject child lacks a sound and substantial basis in the record because a preponderance of the evidence does not demonstrate that the child’s physical, mental or emotional condition was impaired or in danger of becoming impaired, or that the actual or threatened harm to the child was a consequence of the father’s failure to exercise a minimal degree of care in providing her with proper supervision or guardianship during the February 14, 2016 incident.  The Court agreed that although the mother’s and the father’s fact-finding testimony established that the child was in the home when the incident occurred, petitioner failed to establish a prima facie case of neglect because their testimony also established that the child was sleeping in another room in the apartment and was unaware of what occurred, which testimony was supported by the testimony of the responding police officer.

http://www.nycourts.gov/reporter/3dseries/2020/2020_00979.htm