Opinion
2018–09169 2018–09170 Docket Nos. N–11705–16, N–11706–16
04-17-2019
In the MATTER OF DAVID B. (Anonymous). Administration for Children's Services, Respondent; v. Stacy T. (Anonymous), Appellant. (Proceeding No. 1) In the Matter of Danielle T. (Anonymous). Administration for Children's Services, Respondent; v. Stacy T. (Anonymous), Appellant. (Proceeding No. 2)
Richard Cardinale, Brooklyn, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay S. Ng and Janet L. Zaleon of counsel), for respondent. Lesly J. Lanoix, Jamaica, NY, attorney for the children.
Richard Cardinale, Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay S. Ng and Janet L. Zaleon of counsel), for respondent.
Lesly J. Lanoix, Jamaica, NY, attorney for the children.
JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERORDERED that the order of fact-finding is affirmed, without costs or disbursements; and it is further, ORDERED that the order dated June 27, 2018, is affirmed insofar as appealed from, without costs or disbursements.
The petitioner commenced these proceedings pursuant to Family Court Act article 10 alleging that Stacy T. (hereinafter the stepfather) neglected the child Danielle T. by inflicting excessive corporal punishment on her and derivatively neglected the child David B. After a fact-finding hearing, the Family Court determined that the stepfather neglected Danielle B. and derivatively neglected David B. Subsequently, the stepfather moved to dismiss the petitions and vacate the findings of neglect and derivative neglect. The court denied the motion. The stepfather appeals.
"In a child protective proceeding, the petitioner has the burden of proving neglect by a preponderance of the evidence" ( Matter of Oliver A. [Oguis A.-D.], 167 A.D.3d 867, 868, 90 N.Y.S.3d 142 ; see Family Ct. Act § 1046[b][i] ; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). Parents have the right to use reasonable physical force against a child to maintain discipline or promote the child's welfare (see Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d 953, 955, 72 N.Y.S.3d 482 ; Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 773, 45 N.Y.S.3d 144 ). However, "the use of excessive corporal punishment constitutes neglect" ( Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d at 955, 72 N.Y.S.3d 482 [internal quotation marks omitted]; see Matter of Eliora B. [Kennedy B.], 146 A.D.3d at 773, 45 N.Y.S.3d 144 ). "A single incident of excessive corporal punishment is sufficient to sustain a finding of neglect" ( Matter of Za'Niya D. [Kenneth R.], 133 A.D.3d 657, 657, 18 N.Y.S.3d 882 ; see Matter of Kaylarose J.H. [Rena R.D.], 160 A.D.3d at 955, 72 N.Y.S.3d 482 ; Matter of Eliora B. [Kennedy B.], 146 A.D.3d at 773, 45 N.Y.S.3d 144 ).
In a child protective proceeding, a child's prior out-of-court statements relating to the alleged neglect may serve as the basis for a finding of neglect "provided that these hearsay statements are corroborated, so as to ensure their reliability" ( Matter of Alexis S. [Edward S.], 115 A.D.3d 866, 866, 982 N.Y.S.2d 366 [internal quotation marks omitted]; see Matter of Samuel W. [Luemay F.], 160 A.D.3d 755, 756, 74 N.Y.S.3d 171 ; Matter of Jaivon J. [Patricia D.], 148 A.D.3d 890, 891, 48 N.Y.S.3d 769 ). " ‘The rule requiring corroboration is flexible, and any other evidence tending to support the reliability of the child's statements may be sufficient corroboration’ " ( Matter of Samuel W. [Luemay F.], 160 A.D.3d at 756, 74 N.Y.S.3d 171, quoting Matter of Christopher L., 19 A.D.3d 597, 597, 797 N.Y.S.2d 535 ).
Here, a preponderance of the evidence supports the Family Court's finding that the stepfather neglected Danielle T. by inflicting excessive corporal punishment on her (see Matter of Samuel W. [Luemay F.], 160 A.D.3d at 756, 74 N.Y.S.3d 171 ; Matter of Nah–Ki B. [Nakia B.], 143 A.D.3d 703, 706, 38 N.Y.S.3d 593 ; Matter of Dalia G. [Frank B.], 128 A.D.3d 821, 823, 10 N.Y.S.3d 113 ). Danielle T.'s out-of-court statements that the stepfather pushed her to the ground and choked her were corroborated by the out-of-court statements of David B., who witnessed the incident. Further, although the caseworker did not observe suspicious marks or bruising on Danielle T., she did observe a bandage on Danielle T.'s leg and that Danielle T. was limping on the day after the incident (see Matter of Samuel W. [Luemay F.], 160 A.D.3d at 756, 74 N.Y.S.3d 171 ; Matter of Victoria C. [Tara C.], 155 A.D.3d 866, 866–867, 63 N.Y.S.3d 731 ). Although the stepfather disputed the allegations, the court's determination that his version of events was not credible is entitled to deference and is supported by the record (see Matter of Samuel W. [Luemay F.], 160 A.D.3d at 756, 74 N.Y.S.3d 171 ; Matter of Sarah W. [Barbara G.F.], 122 A.D.3d 931, 932, 997 N.Y.S.2d 164 ). The evidence also was sufficient to support the court's finding that David B. was derivatively neglected (see Matter of Samuel W. [Luemay F.], 160 A.D.3d at 757, 74 N.Y.S.3d 171 ; Matter of Dalia G. [Frank B.], 128 A.D.3d at 823, 10 N.Y.S.3d 113 ; Matter of Jallah J. [George J.], 118 A.D.3d 1000, 1001, 989 N.Y.S.2d 91 ).
The stepfather's remaining contention is without merit.
LEVENTHAL, J.P., HINDS–RADIX, BARROS and CONNOLLY, JJ., concur.