Summary
This uncorrected slip opinion from the New York Supreme Court, Appellate Division, First Department, affirms a Family Court order finding that the respondent neglected his child by committing an act of domestic violence against the child's mother while the child was present. The court rejected the respondent's unpreserved due process claim regarding his absence from the fact-finding hearing, noting his counsel's active participation and the lack of a continuance request despite known illness. Relying on the mother's testimony and the caseworker's account, the appellate court upheld the neglect finding and deferred to the trial court's credibility determinations.
Topics
Practice areas
Questions Presented
- Whether proceeding with the fact‑finding hearing in respondent’s absence violated his due‑process rights
- Whether a single incident of domestic violence can sustain a finding of neglect
- Whether a negative inference may be drawn from respondent’s failure to testify
Holdings
- The court held that respondent’s absence did not violate his due‑process rights.
- A single incident where the parent’s judgment is strongly impaired and the child is exposed to a risk of substantial harm can sustain a finding of neglect.
- The court may draw the strongest negative inference against a party who fails to testify when no contradictory evidence is offered.
Key quotations
“a single incident where the parent's judgment was strongly impaired and the child was exposed to a risk of substantial harm can sustain a finding of neglect” (132 AD3d 472)
“perfectly valid reason for an adjournment or a continuance” (189 AD3d 615)
Factual background
Respondent A. R. (A. A.) was held in prison and did not appear at the last day of a fact‑finding hearing because he was ill and hospitalized. The mother testified that the respondent had inflicted domestic‑violence injuries on her while the child was present. The Family Court found neglect based on that single incident.
Procedural history
Family Court entered a fact‑finding order finding that respondent neglected the child after a domestic‑violence incident; the order was affirmed by the appellate division after respondent raised due‑process and procedural objections.