Opinion
2013-03-27
In the Matter of DEONNA E. (Anonymous). Administration for Children's Services, respondent; Marvell C. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Tyonna C. (Anonymous). Administration for Children's Services, respondent; Marvell C. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Arianah C. (Anonymous). Administration for Children's Services, respondent; Marvell C. (Anonymous), appellant. (Proceeding No. 3).
Kenneth M. Tuccillo, Hastings–on–Hudson, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Janet L. Zaleon of counsel), for respondent.
Kenneth M. Tuccillo, Hastings–on–Hudson, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Janet L. Zaleon of counsel), for respondent.
Frank A. Buono, Staten Island, N.Y., attorney for the child Deonna E.
Christopher J. Robles, Brooklyn, N.Y., attorney for the child Tyonna C.
Christopher A. Keating, Brooklyn, N.Y., attorney for the child Arianah C.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.
In three related child neglect proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Kings County (White, J.), dated November 15, 2011, which, after a hearing pursuant to Family Court Act § 1028, denied her application for the return of the subject children to her care and continued the remand of the children to the custody of the Administration for Children's Services.
ORDERED that the order is affirmed, without costs or disbursements.
The mother failed to preserve her due process argument for appellate review since she did not make this argument before the Family Court ( see Matter of Royce K., 64 A.D.3d 779, 882 N.Y.S.2d 664;Matter of Vanessa F., 9 A.D.3d 464, 779 N.Y.S.2d 917). In any event, the mother's contention that she was deprived of her due process rights when the subject children were removed from her custody and transferred to the temporary custody of the petitioner, the Administration for Children's Services (hereinafter ACS), without providing her an opportunity to be heard pursuant to Family Court Act § 1027 is without merit. The Family Court fully afforded the mother due process by following the procedure set forth in Family Court Act § 1028 for the return of a child temporarily removed ( see Nicholson v. Scoppetta, 3 N.Y.3d 357, 376 n. 8, 787 N.Y.S.2d 196, 820 N.E.2d 840;Matter of Forrest S.–R. [ Shirley X.S. ], 101 A.D.3d 734, 735, 954 N.Y.S.2d 482;Matter of Cory M., 307 A.D.2d 1035, 763 N.Y.S.2d 771;Matter of Michael Z., 40 A.D.2d 1034, 339 N.Y.S.2d 3).
Turning to the merits, the Family Court's assessment that the testimony of an ACS case worker, a guidance counselor at the oldest child's school, and a Legal Aid Society case worker was credible, and that the mother's testimony was not credible, is entitled to considerable deference on appeal, and there is no basis here to disturb that assessment ( see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337;Matter of Serenity S. [ Tyesha A. ], 89 A.D.3d 737, 738, 931 N.Y.S.2d 693;Matter of C. Children, 249 A.D.2d 540, 541, 672 N.Y.S.2d 134). Further, the evidence was sufficient to support the court's denial of the mother's application pursuant to Family Court Act § 1028 based upon its finding that the children's emotional, mental, and physical health would be at imminent risk if the children were returned to their mother's custody because of the mother's continued use of excessive corporal punishment ( seeFamily Ct. Act § 1028[a]; Matter of Madeline A. [ Elizabeth M. ], 87 A.D.3d 1132, 930 N.Y.S.2d 458;Matter of Elijah O. [ Marilyn O. ], 77 A.D.3d 836, 909 N.Y.S.2d 373;Matter of Alanie H. [ Crystal D. ], 69 A.D.3d 722, 724, 894 N.Y.S.2d 442;Matter of Amber Gold J., 59 A.D.3d 719, 719, 874 N.Y.S.2d 189;Matter of Gabriel James M., 59 A.D.3d 448, 872 N.Y.S.2d 670;Matter of Solomon W., 50 A.D.3d 912, 856 N.Y.S.2d 207;Matter of Iouke H., 50 A.D.3d 904, 854 N.Y.S.2d 669). Moreover, the record demonstrates that the safer course is not to return the children to the mother's custody pending a full fact-finding hearing ( see Matter of Madeline A. [ Elizabeth M. ], 87 A.D.3d at 1132, 930 N.Y.S.2d 458;Matter of Gabriel James M., 59 A.D.3d at 448, 872 N.Y.S.2d 670;Matter of Solomon W., 50 A.D.3d at 913, 856 N.Y.S.2d 207;Matter of Iouke H., 50 A.D.3d at 904, 854 N.Y.S.2d 669).