Opinion
02-08-2017
In the Matter of DOUGLAS L. (Anonymous). Administration for Children's Services, respondent; Cheyanne J. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Trioanna W. (Anonymous). Administration for Children's Services, respondent; Cheyanne J. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Chala J. (Anonymous). Administration for Children's Services, respondent; Cheyanne J. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Douglin L. (Anonymous). Administration for Children's Services, respondent; Cheyanne J. (Anonymous), appellant. (Proceeding No. 4).
Lisa Lewis, Brooklyn, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, NY (Devin Slack and Kathy C. Park of counsel; Jacob Porter on the brief), for respondent. Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Marianne Allegro of counsel), attorney for the children.
Lisa Lewis, Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Devin Slack and Kathy C. Park of counsel; Jacob Porter on the brief), for respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Marianne Allegro of counsel), attorney for the children.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal by the mother from an order of fact-finding of the Family Court, Kings County (Ann E. O'Shea, J.), dated December 8, 2015. The order of fact-finding, after a hearing, found that the mother neglected the child Chala J. and derivatively neglected the children Douglas L., Trioanna W., and Douglin L.
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
The petitioner commenced a proceeding pursuant to Family Court Act article 10 alleging, inter alia, that the mother neglected the child Chala J. by inflicting excessive corporal punishment on her, and derivatively neglected her three other children as a result of the excessive corporal punishment inflicted upon Chala J. Chala J. had told a caseworker that, as a result of a dispute over dirty dishes, the mother punched, bit, scratched, and attempted to strangle her. After a fact-finding hearing, the Family Court found that the mother neglected Chala J. and derivatively neglected the other children. The mother appeals.
"At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected" (Matter of Negus T. [Fayme B.], 123 A.D.3d 836, 836, 996 N.Y.S.2d 544 ; see Matter of Luis N.P. [Alquiber R.], 127 A.D.3d 1201, 8 N.Y.S.3d 381 ; Matter of Jacob P. [Sasha R.], 107 A.D.3d 719, 967 N.Y.S.2d 89 ). " 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" (Matter of Cheryale B. [Michelle B.], 121 A.D.3d 976, 977, 995 N.Y.S.2d 135 ; see Matter of Laequise P. [Brian C.], 119 A.D.3d 801, 802, 989 N.Y.S.2d 292 ; Matter of Matthew M. [Fatima M.], 109 A.D.3d 472, 970 N.Y.S.2d 271 ).
In a child protective proceeding, unsworn out-of-court statements of the subject child may be received and, if properly corroborated, will support a finding of abuse or neglect (see Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Mateo S. [Robin Marie Y.], 118 A.D.3d 891, 892, 987 N.Y.S.2d 616 ). The Family Court has considerable discretion in deciding whether a child's out-of-court statement has been reliably corroborated and whether the record as a whole supports a finding of neglect (see Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Iouke H. [Terrence H.], 94 A.D.3d 889, 890–891, 941 N.Y.S.2d 851 ; Matter of Alexander M. [Benjamin M.], 88 A.D.3d 794, 795, 930 N.Y.S.2d 893 ; Matter of Joshua B., 28 A.D.3d 759, 814 N.Y.S.2d 210 ).
Here, a preponderance of the evidence supported the Family Court's finding that the mother neglected Chala J. by inflicting excessive corporal punishment on her (see Matter of Cheryale B. [Michelle B.], 121 A.D.3d at 977, 995 N.Y.S.2d 135 ; Matter of Matthew M. [Fatima M.], 109 A.D.3d at 472, 970 N.Y.S.2d 271 ; Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 944 N.Y.S.2d 923 ; Matter of Iouke H. [Terrence
H.], 94 A.D.3d at 890–891, 941 N.Y.S.2d 851 ). Contrary to the mother's contention, Chala J.'s out-of-court statements were sufficiently corroborated by testimony from the caseworker as well as photographs taken by the caseworker of Chala J.'s injuries (see Matter of Hayden C. [Tafari C.], 130 A.D.3d 924, 925, 13 N.Y.S.3d 564 ; Matter of Jenna U. [Derrick U.], 108 A.D.3d 725, 968 N.Y.S.2d 881 ; Matter of Joseph O'D. [Denise O'D.], 102 A.D.3d 874, 875, 958 N.Y.S.2d 731 ; Matter of Charnel T., 49 A.D.3d 427, 853 N.Y.S.2d 346 ). Furthermore, although the mother disputed the allegations, the Family Court's determination that her version of events lacked credibility is entitled to deference and is supported by the record (see Matter of Sarah W. [Barbara G.F.], 122 A.D.3d 931, 997 N.Y.S.2d 164 ; Matter of Cheryale B. [Michelle B. ], 121 A.D.3d at 977, 995 N.Y.S.2d 135 ).
Finally, the evidence which established that the mother inflicted excessive corporal punishment on Chala J. was sufficient to support the Family Court's determination that the other three children were derivatively neglected (see Matter of Hayden C. [Tafari C.], 130 A.D.3d at 925, 13 N.Y.S.3d 564 ; Matter of Matthew M. [Fatima M.], 109 A.D.3d at 472, 970 N.Y.S.2d 271 ).