Opinion
2014-07-16
In the Matter of David M. (Anonymous). Westchester County Department of Social Services, respondent; Sonia M.-C. (Anonymous), et al., appellants.
Neal D. Futerfas, White Plains, N.Y., for appellant Sonia M.-C. (Anonymous). Lydia S. Antoncic, New Rochelle, N.Y., for appellant William H. (Anonymous).
Neal D. Futerfas, White Plains, N.Y., for appellant Sonia M.-C. (Anonymous). Lydia S. Antoncic, New Rochelle, N.Y., for appellant William H. (Anonymous).
Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for respondent.
Theresa M. Daniele, White Plains, N.Y., attorney for the child.
MARK C. DILLON, J.P., and L. PRISCILLA HALL, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
In a proceeding pursuant to Family Court Act article 10, Sonia M.-C. and Willie H. separately appeal, as limited by their respective briefs, from so much of an order of the Family Court, Westchester County (Klein, J.), dated December 27, 2012, as, after a fact-finding hearing, found that each of them had neglected the subject child.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence ( seeFamily Ct. Act § 1046 [b][i] ), (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship ( seeFamily Ct. Act § 1012[f][i] [B]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840). In a child protective proceeding, the 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]; seeFamily Ct Act § 1046[a][vi]; Matter of Nicole V., 71 N.Y.2d 112, 123, 524 N.Y.S.2d 19, 518 N.E.2d 914). “Any other evidence tending to support the reliability of the previous statements ... shall be sufficient corroboration” (Family Ct. Act § 1046[a][vi] ), and “[t]he Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated” (Matter of Alexis S. [Edward S.], 115 A.D.3d at 866, 982 N.Y.S.2d 366 [internal quotation marks omitted]; see Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Nicole G. [Louis G.], 105 A.D.3d 956, 962 N.Y.S.2d 705). “The Family Court's credibility findings must be accorded considerable deference on appeal” (Matter of Alexis S. [Edward S.], 115 A.D.3d at 867, 982 N.Y.S.2d 366;see Matter of Nurridin B. [Louis J.], 116 A.D.3d 770, 771, 982 N.Y.S.2d 910;Matter of Jada A. [Robert W.], 116 A.D.3d 769, 770, 982 N.Y.S.2d 917).
Here, the subject child was exposed to domestic violence. The mother testified that her relationship with the stepfather had been characterized by a pattern of domestic violence, and that the stepfather had engaged in acts of physical abuse against her on several occasions in the child's presence. A caseworker testified that the child told her that he had witnessed the stepfather engage in domestic violence against the mother on multiple occasions, and that he was scared by these incidents and afraid for the mother. The child's therapist also testified that the child had made such statements to her and had exhibited symptoms of trauma and fear in discussing the stepfather's presence in the home. Based on this evidence, the Family Court properly concluded that the child's mental and/or emotional condition had been harmed or had been at imminent risk of harm as a consequence of his exposure to the domestic violence between the mother and stepfather ( seeFamily Ct. Act § 1012[f][i][B]; Nicholson v. Scoppetta, 3 N.Y.3d at 371–372, 787 N.Y.S.2d 196, 820 N.E.2d 840;Matter of Anthony S. [Dawn N.], 98 A.D.3d 519, 520, 949 N.Y.S.2d 194;Matter of Jeaniya W. [Jean W.], 96 A.D.3d 622, 623, 946 N.Y.S.2d 476;Matter of Jayden B. [Erica R.], 91 A.D.3d 1344, 1345–1346, 938 N.Y.S.2d 692;Matter of Clarissa S.P. [Jaris S.], 91 A.D.3d 785, 785–786, 939 N.Y.S.2d 466;Matter of Deandre T., 253 A.D.2d 497, 676 N.Y.S.2d 666).
Contrary to the mother's contention, the evidence that she had continued to reside with the stepfather despite the recurring pattern of his violence against her in the child's presence and without regard for the impact of the violence on the child, and had even rejected shelter and domestic violence services made available to her, established that she had neglected the child by failing to exercise a minimum degree of care in preventing him from being mentally or emotionally harmed ( seeFamily Ct. Act § 1012[f][i]; Nicholson v. Scoppetta, 3 N.Y.3d at 371–372, 787 N.Y.S.2d 196, 820 N.E.2d 840;Matter of Aaron C. [Grace C.], 105 A.D.3d 548, 963 N.Y.S.2d 208;Matter of Anthony S. [Dawn N.], 98 A.D.3d at 520, 949 N.Y.S.2d 194;Matter of Madison PP. [Tina QQ.], 88 A.D.3d 1102, 1103, 931 N.Y.S.2d 178).
The stepfather was afforded the effective assistance of counsel ( seeFamily Ct. Act § 262[a][i]; Matter of Darrell W. [Tenika C.], 110 A.D.3d 1088, 1089, 974 N.Y.S.2d 85;Matter of Alexander C. [Cassandra C.], 110 A.D.3d 1067, 1068, 975 N.Y.S.2d 417).
The mother's arguments concerning an order of the Family Court dated May 18, 2011, are not properly before this Court since she did not appeal from that order ( seeCPLR 5515[1]; Matter of Tekiara F. [Gayle A.E.], 116 A.D.3d 852, 983 N.Y.S.2d 446;Matter of Tara C. [Sonia C.], 106 A.D.3d 735, 963 N.Y.S.2d 875).
The remaining contentions of the mother and stepfather are without merit.