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Family Court Act article 10 … cont

Contrary to the mother’s contention, the Family Court’s determination that she regularly used marijuana, and committed acts of domestic violence against the father while the father was holding the child in his arms, is supported by a preponderance of the evidence in accordance with Family Ct Act § 1046[b][i]). This evidence was sufficient to support the Family Court’s finding that the mother neglected the child pursuant to Family Ct Act § 1012[f][i][B], § 1046[a][iii], Matter of Ajay Sumert D., Matter of Ndeye D., Matter of Kiara C.,Matter of Gregory S., Matter of Michelle L., Matter of Ayana Jean L., Matter of Aminat O. and Matter of Sade W. Additionally, the Family Court providently exercised its discretion in drawing a negative inference against the mother for her failure to testify at the hearing as ruled in Matter of Tajani B., Matter of Karen Patricia G., Matter of Christopher L.

The court finds that there is no basis in the record to overturn the Family Court’s credibility determination regarding the father’s uncontroverted testimony, which is entitled to considerable deference on appeal based on Matter of Sadiq H., Matter of Andrew B. and Matter of Samantha B. The fact that the father was seeking custody of the child did not require wholesale rejection of his testimony, which implicated him, as well as the mother, in drug use akin to Matter of Angelyna G.

The Family Court providently exercised its discretion regarding the scope and manner of cross-examination of the father by precluding certain questions that were unnecessarily repetitive or argumentative.

The court notes that the mother’s holding that the Family Court erred in admitting into evidence the Domestic Incident Report containing the father’s out-of-court statements made to the police concerning the domestic dispute is correct. However, the Family Court possessed sufficient information to make its findings of fact without the statements, and it did not rely upon the statements in its fact-finding as held in Matter of Perez and Matter of Yolanda.

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