## Facts

- Billy Jean II. was born in 1989 to Ray II. (father) and Colleen II. (mother).
- Between 1990 and 1993, numerous reports were made to the State Central Register of Child Abuse and Maltreatment alleging neglect based on unsafe and unsanitary living conditions, poor hygiene, and domestic violence in the child’s home.
- On July 11, 1993, police responded to Ray’s home following a report that Ray had violently assaulted Colleen while Billy Jean was in the residence.
- The responding officers observed injuries and evidence of a serious beating, including hair pulled from Colleen’s head and blood spattered on the walls.
- A friend of Ray’s, Dominic, was also present in the home; state troopers removed Billy Jean because they believed Ray and Dominic were not appropriate caregivers at that time.
- Otsego County Department of Social Services (DSS) filed a Family Court Act article 10 petition on July 29, 1993, alleging that Billy Jean was a neglected child.
- At fact-finding hearings in March and June 1994, the court heard conflicting testimony about whether the child was present during the assault and about the conditions in the home; Ray denied that the child witnessed the beating.
- The record included evidence of repeated domestic violence reports and unsafe home conditions, and evidence bearing on Ray’s alcohol use and volatility.
- Family Court (Otsego County) found that Ray neglected Billy Jean and, by order entered September 7, 1994, placed the child in DSS protective custody.
- Ray appealed from the neglect adjudication and disposition; Colleen did not appeal.

## Issues

1. Whether DSS proved by a preponderance of the evidence that Billy Jean’s physical, mental, or emotional condition was impaired or in imminent danger of impairment due to Ray’s failure to exercise a minimum degree of care under Family Court Act § 1012(f).
2. Whether the evidence that the child was exposed to serious domestic violence in the home, together with the history of unsafe and unsanitary conditions and related concerns, supported the neglect adjudication.

## Decision

- The Appellate Division, Third Department affirmed the Family Court order, without costs.
- The court held that the record provided a sound and substantial basis for finding that Billy Jean’s condition was in imminent danger of impairment because of Ray’s conduct.
- The court relied on evidence that Ray violently assaulted the mother in the home while the child was present, and on the broader history of reports of unsafe conditions and domestic violence.
- The court deferred to Family Court’s credibility determinations in resolving conflicts in the testimony, including Ray’s denial that the child was present during the assault.

## Legal Principles

- A “neglected child” under Family Court Act § 1012(f) is one whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of a parent’s failure to exercise a minimum degree of care in providing proper supervision or guardianship.
- Proof of actual injury is not required; a showing of imminent danger of impairment is sufficient and may be established through the circumstances and history in the home.
- A child’s exposure to domestic violence in the home, including violence directed at a parent, can support a neglect finding because it creates a risk of emotional (and sometimes physical) harm.
- Neglect must be proven by a preponderance of the evidence in an article 10 proceeding.
- On appeal, Family Court’s factual findings and credibility determinations are given substantial deference and will be upheld when supported by the record.

## Conclusion

The Appellate Division affirmed the neglect adjudication and DSS custody order because the proof supported Family Court’s determination that Ray’s violent assault on the mother in the home while the child was present, considered alongside the history of unsafe living conditions and related concerns, placed Billy Jean in imminent danger of impairment within the meaning of Family Court Act § 1012(f).


In the Matter of Billy Jean II, 226 A.D.2d 767, 640 N.Y.S.2d 326 (1996)