Opinion
2021-05804 2020-03170 NN-3905/18 NN-3906/18
10-21-2021
In the Matter of Idris A.W. and Another, Children Under the Age of Eighteen Years of Age, etc., Diadou W. Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent, Appeal No. 14441-14441A
Larry S. Bachner, New York, for appellant Georgia M. Pestana, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent. Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for the child, Idris A. W. Dawne A. Mitchell, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child, Malik T. W.
Larry S. Bachner, New York, for appellant
Georgia M. Pestana, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for the child, Idris A. W.
Dawne A. Mitchell, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child, Malik T. W.
Before: Renwick, J.P., Kapnick, Scarpulla, Rodriguez, Higgitt, JJ.
Order of disposition, Family Court, New York County (Clark V. Richardson, J.), entered on or about January 10, 2020, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about July 18, 2019, which found that respondent mother neglected her eldest son and derivatively neglected her younger son, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
A preponderance of the evidence supports the finding that respondent neglected her eldest son. The child's out-of-court statement was sufficiently corroborated by her younger son's out-of-court statements, submitted through the caseworker's and nonrespondent father's testimony, as well as hospital records (see Matter of Antonio S. There exists no basis for disturbing the court's credibility determinations (see Matter of Deivi R. [Marcos R.], 68 A.D.3d 498, 499 [1st Dept 2009]). The finding of derivative neglect of the younger child is supported by the evidence as to the older child.
Respondent's contention that her due process rights were violated is unpreserved because she never raised the issue in Family Court (see Matter of Tiffany A., 295 A.D.2d 288, 289 [1st Dept 2002]). In any event, respondent's strategic decision not to seek the older child's testimony was not the result of a prohibition by the court and did not constitute a denial of due process (see Matter of Krystal N. [Juan R.], 193 A.D.3d 602, 603 [1st Dept 2021], lv denied N.Y.3d, 2021 NY Slip Op 71225 [2021]).