Opinion
13724, 13723, 13722, 13721
12-09-2014
In re DAVID R., and Others, Child Under the Age of Eighteen Years, etc., Carmen R., et al., Respondents–Appellants, Administration for Children's Services, Petitioner–Respondent.
Steven N. Feinman, White Plains, for Carmen R., appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for Jose R., appellant. Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Steven N. Feinman, White Plains, for Carmen R., appellant.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for Jose R., appellant.
Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
MAZZARELLI, J.P., RENWICK, ANDRIAS, SAXE, KAPNICK, JJ.
Opinion Order of disposition, Family Court, Bronx County (Jeanette Ruiz, J.), entered on or about May 28, 2013, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about October 5, 2011, which found that respondent Jose R., a person legally responsible for the subject children, sexually abused Silvette V., inflicted excessive corporal punishment on Silvette V. and Yaniel V., and derivatively neglected the other three children, and that respondent Carmen R. neglected the subject children, unanimously affirmed, without costs. Appeals from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The findings of abuse and neglect against Jose R. were supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ). At the fact-finding hearing, the children's grandmother and an agency caseworker testified that then five-year-old Silvette had consistently reported that Jose had touched her private parts and kissed her inappropriately. The Family Court properly determined that the child's out-of-court statements were sufficiently corroborated by the testimony of her uncle, who witnessed one incident in which Jose inappropriately placed the child's head in his crotch area (see Matter of Nicole V. 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ). The court found the uncle to be a credible witness, and there exists no basis to disturb the court's credibility determinations (see Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept.2010], lv. denied 16 N.Y.3d 705, 2011 WL 589734 [2011] ). Although repetition by the child of the same allegations does not provide corroboration for the out-of-court statements, the consistency of her reported statements enhances their credibility (Matter of Nicholas J.R. [Jamie L.R.], 83 A.D.3d 1490, 1490–1491, 922 N.Y.S.2d 679 [4th Dept.2011], lv. denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ). Further, Jose's decision not to testify warrants a negative inference against him (see Matter of Eugene L. [Julianna H.], 83 A.D.3d 490, 921 N.Y.S.2d 61 [1st Dept.2011] ).
The finding of excessive corporal punishment against Jose was supported by testimony that Silvette reported that Jose had punched her in the head, and that the oldest child reported that Jose had struck four-year-old Yaniel with a hanger, leaving a red line on his arm. These out-of-court statements by the siblings provide cross-corroboration of excessive use of force by Jose against Silvette and Yaniel, and the statements were further corroborated by the grandmother's testimony that she saw Silvette crying and rubbing her head after the incident, and saw the mark on Yaniel's arm (see Matter of Nicole V., 71 N.Y.2d at 117–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Devante S., 51 A.D.3d 482, 857 N.Y.S.2d 141 [1st Dept.2008] ; Matter of Joshua B., 28 A.D.3d 759, 761, 814 N.Y.S.2d 210 [2d Dept.2006] ). Under the circumstances, Jose's conduct constituted excessive corporal punishment (see Family Ct. Act § 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] ).
The findings of derivative neglect against Jose as to the other children were appropriate, since his behavior evinced such an impaired level of judgment as to create a substantial risk of harm to the other children (see Matter of Joshua R., 47 A.D.3d 465, 466, 849 N.Y.S.2d 246 [1st Dept.2008], lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008] ).
The findings of neglect against the mother were supported by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ). The record shows that the mother knew of Jose's treatment of the children, but dismissed the allegations of sexual and physical abuse, and continued to show loyalty to Jose, without concern for the children (see e.g. Matter of Rayshawn R., 309 A.D.2d 681, 682, 765 N.Y.S.2d 872 [1st Dept.2003] ; Matter of Eric J., 223 A.D.2d 412, 413, 636 N.Y.S.2d 762 [1st Dept.1996] ).