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Admin. for Children's Servs. v. Michelle B. (In re Cheryale B.)

Supreme Court, Appellate Division, Second Department, New York.
Oct 22, 2014
121 A.D.3d 976 (N.Y. App. Div. 2014)

Opinion

2014-10-22

In the Matter of CHERYALE B. (Anonymous). Administration for Children's Services, respondent; Michelle B. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Rochelle B. (Anonymous). Administration for Children's Services, respondent; Michelle B. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Jedaiah B. (Anonymous). Administration for Children's Services, respondent; Michelle B. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Mikael M. (Anonymous). Administration for Children's Services, respondent; Michelle B. (Anonymous), appellant. (Proceeding No. 4).

Mark Brandys, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel), for respondent.



Mark Brandys, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Adira J. Hulkower of counsel), attorney for the children Cheryale B., Rochelle B., and Mikael M.

Francine Shraga, Brooklyn, N.Y., attorney for the child Jedaiah B.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In four related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from (1) an order of fact-finding of the Family Court, Kings County (Wan, J.), dated August 6, 2013, which, after a hearing, found that she neglected the subject child Jedaiah B. and derivatively neglected the subject children Cheryale B., Rochelle B., and Mikael M., and (2) an order of disposition of the same court dated August 8, 2013, which, inter alia, directed that she be supervised by the petitioner for a period of six months.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,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 directed that the appellant be supervised by the petitioner for a period of six months is dismissed, without costs or disbursements; and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

The appeal from so much of the order of disposition as directed that the appellant be supervised by the petitioner for a period of six months must be dismissed as academic, as that portion of the order has expired by its own terms ( see Matter of Chaim R. [Keturah Ponce R.], 94 A.D.3d 1127, 1129, 943 N.Y.S.2d 195; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 926 N.Y.S.2d 119; Matter of Amber C., 38 A.D.3d 538, 539, 831 N.Y.S.2d 478). However, since an adjudication of abuse or neglect “constitutes a permanent and significant stigma that might indirectly affect the appellant's status in future proceedings,” the appeal from the remainder of the order of disposition, which brings up for review the findings of neglect and derivative neglect in the order of fact-finding dated August 6, 2013, is not academic (Matter of Ndeye D. [Benjamin D.], 85 A.D.3d at 1027, 926 N.Y.S.2d 119).

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 ( see Matter of Laequise P. [Brian C.], 119 A.D.3d 801, 989 N.Y.S.2d 292; Matter of Anastasia L.-D. [Ronald D.], 113 A.D.3d 685, 978 N.Y.S.2d 347; Matter of Matthew M. [Fatima M.], 109 A.D.3d 472, 970 N.Y.S.2d 271). The Family Court's finding of neglect as to the subject child Jedaiah, based upon the mother's use of excessive corporal punishment, is supported by a preponderance of the evidence ( seeFamily Ct. Act §§ 1012[f][i][B]; 1046 [b] [i]; Matter of Jacob P. [Sasha R.], 107 A.D.3d 719, 967 N.Y.S.2d 89; Matter of Deon S.-G. [Romel S.-G.], 95 A.D.3d 1340, 944 N.Y.S.2d 899). Jedaiah's out-of-court statements that the mother repeatedly struck her in the face with an open hand and fist were sufficiently corroborated by the caseworker's observations of Jedaiah's injuries, a photograph of the injuries, and the mother's admission during her direct testimony that she had struck Jedaiah with a belt in the past ( seeFamily Ct. Act § 1046[a][vi]; Matter of Jallah J. [George J.], 118 A.D.3d 1000, 989 N.Y.S.2d 91; Matter of Nurridin B. [Louis J.], 116 A.D.3d 770, 982 N.Y.S.2d 910; Matter of James S. [Kathleen S.], 88 A.D.3d 1006, 931 N.Y.S.2d 524; Matter of Isaiah S., 63 A.D.3d 948, 880 N.Y.S.2d 528; Matter of Nicholas L., 50 A.D.3d 1141, 857 N.Y.S.2d 629; Matter of Joshua B., 28 A.D.3d 759, 814 N.Y.S.2d 210). The Family Court's determination that the mother lacked credibility when she testified that she had not hit Jedaiah during the alleged incident is entitled to deference ( see Matter of Jahani K. [Felicia K.], 111 A.D.3d 832, 976 N.Y.S.2d 100; Matter of Sadiq. H. [Karl H.], 81 A.D.3d 647, 915 N.Y.S.2d 867), and is fully supported by the record.

The evidence also supported the finding of derivative neglect as to the subject children Cheryale, Rochelle, and Mikael ( seeFamily Ct. Act § 1046 [a][i]; see also Matter of Matthew M. [Fatima M.], 109 A.D.3d 472, 970 N.Y.S.2d 271; Matter of Jacob P. [Sasha R.], 107 A.D.3d 719, 967 N.Y.S.2d 89; Matter of Amerriah S. [Kadiaton Y.], 100 A.D.3d 1006, 1007, 955 N.Y.S.2d 147; Matter of Delehia, J. [Tameka J.], 93 A.D.3d 668, 669, 939 N.Y.S.2d 570).

The parties' remaining contentions either are without merit or need not be reached in light of our determination.


Summaries of

Admin. for Children's Servs. v. Michelle B. (In re Cheryale B.)

Supreme Court, Appellate Division, Second Department, New York.
Oct 22, 2014
121 A.D.3d 976 (N.Y. App. Div. 2014)
Case details for

Admin. for Children's Servs. v. Michelle B. (In re Cheryale B.)

Case Details

Full title:In the Matter of CHERYALE B. (Anonymous). Administration for Children's…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Oct 22, 2014

Citations

121 A.D.3d 976 (N.Y. App. Div. 2014)
121 A.D.3d 976
2014 N.Y. Slip Op. 7152

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