Opinion
2014-01-21
In re SYLVIA G., and Others, Dependent Children Under Eighteen Years of Age, etc., Barbara G., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child Sylvia G.
Tamara A. Steckler, The Legal Aid Society, New York (Adira Hulkower of counsel), attorney for the children Keith H. and Michael M.
TOM, J.P., SAXE, MOSKOWITZ, GISCHE, CLARK, JJ.
Order of fact-finding and disposition, Family Court, New York County (Jody Adams, J.), entered on or about July 6, 2012, which, to the extent appealed from as limited by the briefs, determined that respondent mother neglected her adopted daughter by inflicting excessive corporal punishment upon her, and derivatively neglected her two grandsons, Keith H. and Michael M., unanimously affirmed, without costs.
The Family Court properly balanced the subject child's mental and emotional well being with respondent's due process rights by permitting the child to testify outside of respondent's presence at the fact-finding hearing, utilizing closed circuit video, which allowed all parties to observe the child's testimony and demeanor, and afforded respondent's counsel the opportunity to contemporaneously cross-examine the child after consulting with respondent ( see Matter of Arlenys B. [Aneudes B.], 70 A.D.3d 598, 599, 896 N.Y.S.2d 321 [1st Dept.2010] ).
The finding of neglect is supported by a preponderance of the evidence. The record demonstrates that respondent inflicted excessive corporal punishment on her adopted daughter by striking her repeatedly in the head with a two-foot wooden paddle ( seeFamily Court Act § 1012[f][i][B] ). There is no basis to disturb the court's credibility determinations crediting the testimony given by the subject child after extensive cross-examination and discrediting respondent's testimony which was evasive ( see Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept.2010],lv. denied16 N.Y.3d 705, 2011 WL 589734 [2011] ). Respondent's contention that the child's testimony was not credible because no one observed any bruising is belied by her own testimony and the child's testimony that respondent kept the child home from school following the incident during which the child testified that she was struck with the paddle. Moreover, the absence of a physical injury to the subject child is not dispositive ( see Matter of Jonathan F., 294 A.D.2d 121, 744 N.Y.S.2d 362 [1st Dept.2002] ).
The derivative finding of neglect was proper. Respondent's inappropriate and excessive corporal punishment of her adopted child demonstrates that she has a sufficiently faulty understanding of her parental duties, warranting an inference that she is an ongoing danger to her grandsons ( seeFamily Court Act § 1046[a][i]; Matter of Joseph C. [Anthony C.], 88 A.D.3d 478, 478, 931 N.Y.S.2d 44 [1st Dept.2011] ).