Opinion
11985 Dkt. No. NA-10423-5/17 Case No. 2019-2611
10-08-2020
IN RE A.M.A., and Others, Children Under Eighteen Years of Age, etc., Anggeluz A., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Richard L. Helzberg, P.C., New York (Richard L. Helzberg of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Cynthia Kao of counsel), for respondent. Larry S. Bachner, New York, attorney for the children.
Richard L. Helzberg, P.C., New York (Richard L. Helzberg of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Cynthia Kao of counsel), for respondent.
Larry S. Bachner, New York, attorney for the children.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, JJ.
Order of fact-finding and disposition, Supreme Court, New York County (Douglas E. Hoffman, J.), entered December 20, 2018, which, to the extent appealed from as limited by the briefs, found that respondent mother neglected the child Kimberly and derivatively neglected the other two children, unanimously affirmed, without costs.
The findings of neglect and derivative neglect are supported by a preponderance of the evidence showing that respondent used excessive corporal punishment on K.A. (see Family Court Act § 1046[b][i] ; § 1012[f][i][B]; Matter of Joseph C. [Anthony C.], 88 A.D.3d 478, 479, 931 N.Y.S.2d 44 [1st Dept. 2011] ; Matter of Cevon W. [Talisha W.], 110 A.D.3d 542, 974 N.Y.S.2d 38 [1st Dept. 2013] [a single incident of impaired parental judgment can sustain a finding of neglect] ). The record shows that respondent become enraged after Kimberly showered at a late hour one night, and struck K.A. in the arm twice with a six-foot-long, wooden mop-pole, causing an injury that was diagnosed as a fracture. Respondent also threatened to strike K.A. with a clothes hanger and said she would "kill" K.A. The other two children were present during this incident, which one of them, A.A., secretly recorded on a cellphone. The evidence includes the testimony of petitioner agency's caseworker and a police officer, who both testified to the children's out-of-court statements, and the cellphone video capturing part of the incident, as well as photographs of K.A.'s injuries and her medical records. Respondent's actions towards K.A. show a fundamental defect in her understanding of her parental obligations, which supports the finding of derivative neglect with respect to the other children (see Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 966 N.Y.S.2d 406 [1st Dept. 2013] ; Matter of Naomi J. [Damon R.], 84 A.D.3d 594, 923 N.Y.S.2d 467 [1st Dept. 2011] ).
Contrary to respondent's argument, A.A.'s out-of-court statements formed a proper foundation for admission of the cellphone video (see People v. Patterson, 93 N.Y.2d 80, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ). Her foundational statements, which were admitted through the testimony of the case worker and police officer, were corroborated by respondent who acknowledged the video and did not dispute its contents ( Family Ct. Act § 1046 ). The court providently exercised its discretion in limiting respondent's testimony about A.A. and K.A.'s out-of-court statements and provided her with sufficient opportunity to call them as witnesses, which she chose not to do.
Respondent's argument that she was deprived of her right to counsel is unpreserved and in any event unavailing (see People v. Wardlaw, 6 N.Y.3d 556, 816 N.Y.S.2d 399, 849 N.E.2d 258 [2006] ; Matter of British R. [Shavon J.], 178 A.D.3d 574, 575, 117 N.Y.S.3d 1 [1st Dept. 2019] ).