Opinion
2015-07-22
In the Matter of HAYDEN C. (Anonymous). Suffolk County Department of Social Services, respondent; Tafari C. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Tapharye C. (Anonymous). Suffolk County Department of Social Services, respondent; Tafari C. (Anonymous), appellant. (Proceeding No. 2).
Susan A. DeNatale, Bayport, N.Y., for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Mara E. Cella of counsel), for respondent.
Susan A. DeNatale, Bayport, N.Y., for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Mara E. Cella of counsel), for respondent.
Thomas W. McNally, Huntington, N.Y., attorney for the children.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal from an order of fact-finding and disposition of the Family Court, Suffolk County (Caren Loguercio, J.), dated August 5, 2014. The order, after fact-finding and dispositional hearings, found that the father neglected the child Tapharye C. and derivatively neglected the child Hayden C. and placed the subject children with the nonrespondent mother.
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
“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; seeFamily Ct. Act § 1046[b][I]; 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). Moreover, where the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded considerable deference on appeal ( see Matter of Cheryale B. [Michelle B.], 121 A.D.3d at 977, 995 N.Y.S.2d 135; Matter of Mateo S. [Robin Marie Y.], 118 A.D.3d at 893, 987 N.Y.S.2d 616; Matter of Jada K.E. [Richard D.E.], 96 A.D.3d 744, 949 N.Y.S.2d 58).
Here, a preponderance of the evidence supported the Family Court's finding that the father neglected the child Tapharye C. by inflicting excessive corporal punishment on him ( see Matter of Luis N.P. [Alquiber R.], 127 A.D.3d at 1202, 8 N.Y.S.3d 381; Matter of Ishaq B. [Lea B.], 121 A.D.3d 889, 994 N.Y.S.2d 405; Matter of Jenna U. [Derrick U.], 108 A.D.3d 725, 968 N.Y.S.2d 881; Matter of Iouke H. [Terrence H.], 94 A.D.3d at 890–891, 941 N.Y.S.2d 851). Contrary to the father's contention, out-of-court statements by the subject children were sufficiently corroborated by the testimony of a school nurse and the caseworkers employed by the Suffolk County Department of Social Services, who had also observed the evidence of physical injury sustained by Tapharye, as well as by the children's own cross-corroborating statements ( see Matter of Mateo S. [Robin Marie Y.], 118 A.D.3d at 893, 987 N.Y.S.2d 616; Matter of Nurridin B. [Louis J.], 116 A.D.3d 770, 771, 982 N.Y.S.2d 910; Matter of Arique D. [Elizabeth A.], 111 A.D.3d 625, 627, 975 N.Y.S.2d 82; Matter of Iouke H. [Terrence H.], 94 A.D.3d at 890–891, 941 N.Y.S.2d 851; Matter of Maria Daniella R. [Maria A.], 84 A.D.3d 1384, 1385, 924 N.Y.S.2d 294).
Furthermore, although the father disputed the allegations, the Family Court's determination that he lacked credibility is entitled to deference and is fully 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 father used excessive force to discipline the child Tapharye C., and had engaged in a pattern of inappropriate disciplinary efforts, was sufficient to support the Family Court's determination that he derivatively neglected Hayden C. ( see 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. [Kadiatou Y.], 100 A.D.3d 1006, 955 N.Y.S.2d 147).