Opinion
2020–00557 2020–00560 Docket No. N–9962–18
03-24-2021
In the MATTER OF JE'LAYA J. (Anonymous). Administration for Children's Services, petitioner-respondent; v. Nathaniel J. (Anonymous), appellant, et al., respondent.
Paul W. Matthews, Forest Hills, NY, for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Kevin Osowski of counsel), for petitioner-respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Diane Pazar of counsel), attorney for the child.
Paul W. Matthews, Forest Hills, NY, for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Kevin Osowski of counsel), for petitioner-respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Diane Pazar of counsel), attorney for the child.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Kings County (Elizabeth Barnett, J.), dated December 23, 2019, and (2) an order of disposition of the same court dated January 9, 2020. The order of fact-finding, insofar as appealed from, after a fact-finding hearing, found that the father neglected the subject child. The order of disposition, inter alia, placed the child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the portions of the order of fact-finding appealed from were superseded by the order of disposition and are brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the appeal from so much of the order of disposition as placed the subject child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, among other things, that the father neglected the subject child, who was then 17 years old, by inflicting excessive corporal punishment on her and by failing to provide adequate food, clothing, and shelter. Following a fact-finding hearing, the Family Court found, inter alia, that the father neglected the child. The father appeals.
The appeal from so much of the order of disposition as placed the child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing must be dismissed as academic, as the period of placement has expired (see Matter of Zana C. [Dana F.], 171 A.D.3d 1045, 1047, 98 N.Y.S.3d 326 ; Matter of Michael G. [Marie S.F.], 152 A.D.3d 590, 590, 59 N.Y.S.3d 74 ). The adjudication of neglect, however, "constitutes a permanent and significant stigma, which might indirectly affect the [status of the father in potential] future proceedings" ( Matter of Grace M. [Leighton M.], 180 A.D.3d 912, 913, 119 N.Y.S.3d 511 [internal quotation marks omitted]). Therefore, the appeal from so much of the order of disposition as brings up for review the finding that the father neglected the child is not academic (see id. at 913, 119 N.Y.S.3d 511 ).
"In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence" ( Matter of Elisa V. [Hung V.], 159 A.D.3d 827, 828, 71 N.Y.S.3d 626 ; see Family Ct Act § 1046[b] ). "Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor" ( Matter of Emmanuel E. [Debra C.], 187 A.D.3d 1014, 1014, 131 N.Y.S.3d 189 [internal quotation marks omitted]). "Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect" ( Matter of Elisa V. [Hung V.], 159 A.D.3d at 828, 71 N.Y.S.3d 626 [internal quotation marks omitted]). Even " ‘[a] single incident of excessive corporal punishment may suffice to sustain a finding of neglect’ " ( Matter of Emmanuel E. [Debra C.], 187 A.D.3d at 1014, 131 N.Y.S.3d 189, quoting Matter of Elisa V. [Hung V.], 159 A.D.3d at 828, 71 N.Y.S.3d 626 ). Further, as relevant here, a neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent ... to exercise a minimum degree of care ... in supplying the child with adequate food, clothing, shelter or education ... though financially able to do so or offered financial or other reasonable means to do so" ( Family Ct Act § 1012[f][i][A] ).
Here, the Family Court properly determined that ACS established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporal punishment on her (see Family Ct Act § 1046[b] ; Matter of Emmanuel E. [Debra C.], 187 A.D.3d 1014, 131 N.Y.S.3d 189 ; Matter of Elisa V. [Hung V.], 159 A.D.3d at 828, 71 N.Y.S.3d 626 ) and by failing to provide the child with adequate food, clothing, and shelter when he went to Florida for several days, locking the child out of the home (see Matter of Kurt K. [Karen K.], 133 A.D.3d 755, 756, 19 N.Y.S.3d 183 ). Contrary to the father's contention, there is no basis for disturbing the court's credibility determinations, which are entitled to deference (see Matter of Angela–Marie C. [Renee C.], 162 A.D.3d 1010, 1011, 80 N.Y.S.3d 356 ; Matter of Tarelle J. [Walter J.], 152 A.D.3d 593, 595, 58 N.Y.S.3d 539 ).
Contrary to the father's further contentions, the Family Court providently exercised its discretion in permitting the child to testify via closed-circuit television (see Matter of Vany A.C. [Laneska M.], 125 A.D.3d 650, 651, 2 N.Y.S.3d 616 ), and he was not deprived of the effective assistance of counsel (see Matter of Innocence A.M.-F. [Khadijah N.M.-F.], 173 A.D.3d 869, 105 N.Y.S.3d 437 ).
DILLON, J.P., HINDS–RADIX, DUFFY and IANNACCI, JJ., concur.