evidence at the fact-finding hearing in New York

2019In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency ( see Matter of David H. , 69 NY2d 792, 793 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant was the person who committed the acts at issue ( see Matter of Maximus G. , 165 AD3d 660 , 661; Matter of Aaliyah R. , 144 AD3d 923 ).

2018In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency ( see Matter of David H., 69 NY2d 792, 793 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted strangulation in the second degree (Penal Law §§ 110, 121.12), criminal obstruction of breathing or blood circulation (Penal Law § 121.11[a]), and attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1]).

1999The evidence at the fact-finding hearing, viewed in the light most favorable to the presentment agency, was sufficient for the court to conclude appellant perceived and disregarded a substantial, unjustifiable risk of harm to others when he intentionally set a fire in a juvenile detention dormitory and the determination was not against the weight of the evidence (People v Bleakley, 69 NY2d 490 ).

1999The evidence at the fact-finding hearing, viewed in the light most favorable to the presentment agency, was sufficient for the court to conclude appellant perceived and disregarded a substantial, unjustifiable risk of harm to others when he intentionally set a fire in a juvenile detention dormitory and the determination was not against the weight of the evidence (People v Bleakley, 69 NY2d 490 ).

2013Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5]; see People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Clarissa S., 83 AD3d 1083, 1084 [2011]; cf. People v Bleakley, 69 NY2d 490, 495 [1987]).

2013Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5]; see People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Clarissa S., 83 AD3d 1083, 1084 [2011]; cf. People v Bleakley, 69 NY2d 490, 495 [1987]).

2025Based on our review of the evidence at the fact-finding hearing, we conclude that Family Court properly considered the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the subject children's best interests ( see Matter of Williams v Luczynski , 134 AD3d 1576, 1576 [4th Dept 2015]).

2025Based on our review of the evidence at the fact-finding hearing, we conclude that Family Court properly considered the factors set forth in Matter of Tropea v Tropea ( 87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the subject children's best interests ( see Matter of Williams v Luczynski , 134 AD3d 1576, 1576 [4th Dept 2015]).

2013In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Kemar G., 72 AD3d at 965 ; Matter of Summer D., 67 AD3d 1008, 1009 [2009]; Matter of Davonte B., 44 AD3d 763 [2007]), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree (see Penal Law § 130.65 [1]; see generally People v Jessup, 90 AD3d 782, 783-784 [2011])

2013In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Kemar G., 72 AD3d at 965 ; Matter of Summer D., 67 AD3d 1008, 1009 [2009]; Matter of Davonte B., 44 AD3d 763 [2007]), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree (see Penal Law § 130.65 [1]; see generally People v Jessup, 90 AD3d 782, 783-784 [2011])

2013Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5]; see People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Clarissa S., 83 AD3d 1083, 1084 [2011]; cf. People v Bleakley, 69 NY2d 490, 495 [1987]).

2013Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (cf. CPL 470.15 [5]; see People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Clarissa S., 83 AD3d 1083, 1084 [2011]; cf. People v Bleakley, 69 NY2d 490, 495 [1987]).

2013In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Kemar G., 72 AD3d at 965 ; Matter of Summer D., 67 AD3d 1008, 1009 [2009]; Matter of Davonte B., 44 AD3d 763 [2007]), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree (see Penal Law § 130.65 [1]; see generally People v Jessup, 90 AD3d 782, 783-784 [2011])

2013In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Kemar G., 72 AD3d at 965 ; Matter of Summer D., 67 AD3d 1008, 1009 [2009]; Matter of Davonte B., 44 AD3d 763 [2007]), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree (see Penal Law § 130.65 [1]; see generally People v Jessup, 90 AD3d 782, 783-784 [2011])

2024The evidence at the fact-finding hearing established that the daughter told the mother about incidents of sexual abuse by the daughter's uncle and grandfather and the mother neglected to exercise the minimum degree of care by failing to take sufficient action in order to avoid actual physical, mental and emotional impairment to her daughter ( see Matter of Telsa Z. [Denise Z.] , 81 AD3d 1130, 1133 [3d Dept 2011]; see also Matter of Crystiana M. [Crystal M.-Pamela J.] , 129 AD3d 1536 , 1537 [4th Dept 2015]; see generally Nicholson , 3 NY3d at 370 ).

2021Contrary to the mother's contention, the evidence at the fact-finding hearing established that the "child'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 child is a consequence of the failure of the [mother] to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ( Nicholson v Scoppetta , 3 NY3d 357, 368 [2004]; see §§ 1012 [f] [i] [B]; 1046 [b] [i]; see generally Matter of Nassau County Dept. of Social Servs. v Denise J. , 87 NY2d 73, 78-79

2016Here, we agree with petitioner and the Attorney for the Child that the evidence at the fact-finding hearing established a prima facie case of neglect under Family Court Act § 1046 (a) (iii) based on the mother’s misuse of prescription medication (see Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103 [2011], lv denied 18 NY3d 802 [2011]; see generally Samaj B., 98 AD3d at 1313 ).

2016Here, we agree with petitioner and the Attorney for the Child that the evidence at the fact-finding hearing established a prima facie case of neglect under Family Court Act § 1046 (a) (iii) based on the mother’s misuse of prescription medication (see Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103 [2011], lv denied 18 NY3d 802 [2011]; see generally Samaj B., 98 AD3d at 1313 ).

2016The evidence at the fact-finding hearing established that petitioner, among other things, facilitated visitation between the mother and child, arranged for parenting classes and monitored the mother’s progress therein, conducted service plan reviews, and referred the mother to mental health services (see Matter of Joshua T.N. [Tommie M.], 140 AD3d 1763, 1763 [2016], lv denied 28 NY3d 904 [2016]; Jerikkoh W., 134 AD3d at 1550-1551; Matter of Burke H. [Richard H.], 134 AD3d 1499 , 1500 [2015]).

2016The evidence at the fact-finding hearing established that petitioner, among other things, facilitated visitation between the mother and child, arranged for parenting classes and monitored the mother’s progress therein, conducted service plan reviews, and referred the mother to mental health services (see Matter of Joshua T.N. [Tommie M.], 140 AD3d 1763, 1763 [2016], lv denied 28 NY3d 904 [2016]; Jerikkoh W., 134 AD3d at 1550-1551; Matter of Burke H. [Richard H.], 134 AD3d 1499 , 1500 [2015]).

2021Although the mother correctly contends that a parent's positive toxicology report, alone, is insufficient to establish imminent danger to a child ( see Matter of Nassau County Dept. of Social Servs. v Denise J. , 87 NY2d 73, 79 [1995]), the evidence at the fact-finding hearing, including the mother's prior Family Court records, which were also properly admitted in evidence ( see Family Ct Act § 1046 [a] [i]), established that the mother's "use of cocaine during her pregnancy, considered in conjunction with her prior, demonstrated inability to adequately care for her [older] children while misu

2021Although the mother correctly contends that a parent's positive toxicology report, alone, is insufficient to establish imminent danger to a child ( see Matter of Nassau County Dept. of Social Servs. v Denise J. , 87 NY2d 73, 79 [1995]), the evidence at the fact-finding hearing, including the mother's prior Family Court records, which were also properly admitted in evidence ( see Family Ct Act § 1046 [a] [i]), established that the mother's "use of cocaine during her pregnancy, considered in conjunction with her prior, demonstrated inability to adequately care for her [older] children while misu

2017Thus, even without reference to the report, the evidence at the fact-finding hearing established that petitioner made the requisite diligent efforts (see Matter of Mya B. [William B.], 84 AD3d 1727, 1727 [2011], lv denied 17 NY3d 707 [2011]), and that the “mother did not comply with her service plan, inasmuch as she did not regularly attend visitation, find stable housing, or consistently engage in [her counseling sessions]” (Matter of Zachary H. [Jessica H.], 129 AD3d 1501 , 1501 [2015], lv denied 25 NY3d 915 [2015]).

2017Thus, even without reference to the report, the evidence at the fact-finding hearing established that petitioner made the requisite diligent efforts (see Matter of Mya B. [William B.], 84 AD3d 1727, 1727 [2011], lv denied 17 NY3d 707 [2011]), and that the “mother did not comply with her service plan, inasmuch as she did not regularly attend visitation, find stable housing, or consistently engage in [her counseling sessions]” (Matter of Zachary H. [Jessica H.], 129 AD3d 1501 , 1501 [2015], lv denied 25 NY3d 915 [2015]).

2016Here, we agree with petitioner and the Attorney for the Child that the evidence at the fact-finding hearing established a prima facie case of neglect under Family Court Act § 1046 (a) (iii) based on the mother’s misuse of prescription medication (see Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103 [2011], lv denied 18 NY3d 802 [2011]; see generally Samaj B., 98 AD3d at 1313 ).

2016Here, we agree with petitioner and the Attorney for the Child that the evidence at the fact-finding hearing established a prima facie case of neglect under Family Court Act § 1046 (a) (iii) based on the mother’s misuse of prescription medication (see Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103 [2011], lv denied 18 NY3d 802 [2011]; see generally Samaj B., 98 AD3d at 1313 ).

2016The evidence at the fact-finding hearing established that petitioner, among other things, facilitated visitation between the mother and child, arranged for parenting classes and monitored the mother’s progress therein, conducted service plan reviews, and referred the mother to mental health services (see Matter of Joshua T.N. [Tommie M.], 140 AD3d 1763, 1763 [2016], lv denied 28 NY3d 904 [2016]; Jerikkoh W., 134 AD3d at 1550-1551; Matter of Burke H. [Richard H.], 134 AD3d 1499 , 1500 [2015]).

2016The evidence at the fact-finding hearing established that petitioner, among other things, facilitated visitation between the mother and child, arranged for parenting classes and monitored the mother’s progress therein, conducted service plan reviews, and referred the mother to mental health services (see Matter of Joshua T.N. [Tommie M.], 140 AD3d 1763, 1763 [2016], lv denied 28 NY3d 904 [2016]; Jerikkoh W., 134 AD3d at 1550-1551; Matter of Burke H. [Richard H.], 134 AD3d 1499 , 1500 [2015]).

2015Upon our review of the evidence at the fact-finding hearing, we conclude that the court properly considered the factors set forth in Matter of Tropea v Tropea ( 87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the child’s best interests, and that its determination has “a sound and substantial basis in the record” (Matter of Murphy v Peace, 72 AD3d 1626, 1627 [2010]).

2015Upon our review of the evidence at the fact-finding hearing, we conclude that the court properly considered the factors set forth in Matter of Tropea v Tropea ( 87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the child’s best interests, and that its determination has “a sound and substantial basis in the record” (Matter of Murphy v Peace, 72 AD3d 1626, 1627 [2010]).

2006Contrary to the father’s contention, Rockland County Department of Social Services proved by a preponderance of the evidence at the fact-finding hearing that the father neglected the subject child “by engaging in acts of violence against her mother in the presence of the child, thereby creating an imminent danger that the child’s physical, mental, and emotional health would be harmed” (Matter of Sanjeeda M., 24 AD3d 445, 446 [2005]; see Matter of Cybill V., 279 AD2d 582 , 583 [2001]; Matter of Tami G., 209 AD2d 869, 870 [1994]).

2005Moreover, ACS proved by a preponderance of the evidence at the fact-finding hearing that the father neglected the subject child by engaging in acts of violence against her mother in the presence of the child, thereby creating an imminent danger that the child’s physical, mental, and emotional health would be harmed (see Matter of Carlos M., 293 AD2d 617, 619 [2002]; Matter of Cybill V., 279 AD2d 582 [2001]; Matter of Tami G, 209 AD2d 869, 870 [1994]).

2025The court properly determined that the mother "failed to establish that the [subject] child[ren]'s li[ves] would 'be enhanced economically, emotionally and educationally' by the proposed relocation" ( Matter of Hill v Flynn , 125 AD3d 1433, 1434 [4th Dept 2015], lv denied 25 NY3d 910 [2015]; see Matter of Shepherd v Stocker , 159 AD3d 1441, 1442 [4th Dept 2018]).

2016Based on our review of the evidence at the fact-finding hearing, we conclude that Family Court properly considered the factors set forth in Matter of Tropea v Tropea ( 87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the child’s best interests, and we further conclude that the court’s determination has “ ‘a sound and substantial basis in the record’ ” (Matter of Hill v Flynn, 125 AD3d 1433, 1434 [2015], lv denied 25 NY3d 910 [2015]).

2025Based on our review of the evidence at the fact-finding hearing, we conclude that Family Court properly considered the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the subject children's best interests ( see Matter of Williams v Luczynski , 134 AD3d 1576, 1576 [4th Dept 2015]).

2025Based on our review of the evidence at the fact-finding hearing, we conclude that Family Court properly considered the factors set forth in Matter of Tropea v Tropea ( 87 NY2d 727, 740-741 [1996]) in determining that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation is in the subject children's best interests ( see Matter of Williams v Luczynski , 134 AD3d 1576, 1576 [4th Dept 2015]).

2024Contrary to the mother's further contention, the court properly drew a negative inference against her based on her failure to testify at the fact-finding hearing ( see Matter of Noah C. [Greg C.] , 192 AD3d 1676, 1678 [4th Dept 2021]; Matter of Rashawn J. [Veronica H.-B.] , 159 AD3d 1436 , 1437 [4th Dept 2018]).

2023Thus, the court's determination that petitioner established neglect by a preponderance of the evidence is supported by the requisite sound and substantial basis in the record ( see Matter of Noah C. [Greg C.] , 192 AD3d 1676, 1677-1678 [4th Dept 2021]; Matter of Jack S. [Leah S.] , 176 AD3d 1643 , 1644-1645 [4th Dept 2019]).