Opinion
12-29-2015
In re JAYDEN R., and Another, Children Under the Age of Eighteen Years, etc., Jacqueline C., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent, Raymond M., Respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
FRIEDMAN, J.P., ACOSTA, ANDRIAS, RICHTER, JJ.
Orders of disposition, Family Court, Bronx County (Valerie A. Pels, J.), entered on or about July 22, 2013, to the extent they bring up for review an order of fact-finding, same court (Jane Pearl, J.), entered on or about March 28, 2013, which, to the extent appealed from as limited by the briefs, found that respondent mother had neglected the older subject child and had derivatively neglected the younger subject child, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the orders of disposition.
A preponderance of the evidence supports the Family Court's finding that the mother had neglected the older child by inflicting excessive corporal punishment on him (see Family Ct. Act §§ 1012[f][i][B] ; 1046[b] [i]; Matter of Genesis F. [ Xiomaris S.], 121 A.D.3d 526, 526, 994 N.Y.S.2d 341 [1st Dept.2014] ). The older son's out-of-court statements that the mother had a history of hitting him with a belt, causing bruises to his body, were properly admitted into evidence. His statements were corroborated by an agency caseworker's observation of bruises on the child, photographs depicting the injuries, medical records, and the mother's own admission that she had beaten the child with a belt (Genesis, 121 A.D.3d at 526, 994 N.Y.S.2d 341 ; Matter of Aniya C. [Michelle C.], 99 A.D.3d 478, 479, 952 N.Y.S.2d 127 [1st Dept.2012] ).
The mother failed to preserve her argument that there was insufficient evidence of impairment of her older child's physical, mental or emotional condition (see Matter of Star Leslie W., 63 N.Y.2d 136, 145, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). In any event, we reject it on the merits. There is also no merit to the mother's argument that the case involved a single or isolated incident of reasonable discipline. The child told the caseworker and his grandmother about prior incidents in which the mother hit the child with a belt and her hands, and the mother acknowledged threatening the child with a belt and claimed that he "bruises easily." In any event, a single incident of excessive corporal punishment may be sufficient to sustain a finding of neglect (see Matter of Cevon W. [ Talisha W.], 110 A.D.3d 542, 542, 974 N.Y.S.2d 38 [1st Dept.2013] ).
The finding of neglect was also supported by the evidence that the mother's boyfriend, corespondent Raymond, had inflicted excessive corporal punishment against the older child, and that the mother knew or should have known about the corporal punishment but failed to take any steps to protect the child (see Matter of Gabriel J. [O'Neill H.], 99 A.D.3d 543, 544, 952 N.Y.S.2d 521 [1st Dept.2012], lv. dismissed 20 N.Y.3d 999, 959 N.Y.S.2d 682, 983 N.E.2d 760 [2013] ).
The evidence of the mother's neglect of the older child supports the finding that she derivatively neglected the younger child (see Matter of Kaiyeem C. [Ndaka C.], 126 A.D.3d 528, 529, 4 N.Y.S.3d 39 [1st Dept.2015] ; Matter of Syed I., 61 A.D.3d 580, 580, 877 N.Y.S.2d 318 [1st Dept.2009] ).