Opinion
03-23-2016
In the Matter of SHAQUAN A. (Anonymous). Administration for Children's Services, respondent; Fan Fan A. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Fantrel A. (Anonymous). Administration for Children's Services, respondent; Fan Fan A. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Nathaniel A. (Anonymous). Administration for Children's Services, respondent; Fan Fan A. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Faniastasia A. (Anonymous). Administration for Children's Services, respondent; Fan Fan A. (Anonymous), appellant. (Proceeding No. 4).
Helene Chowes, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Ellen Ravitch of counsel), for respondent. Melissa E. Bonaldes, Brooklyn, N.Y., attorney for the child Shaquan A. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the children Fantrel A. and Nathaniel A. Gail R. Rich, Brooklyn, N.Y., attorney for the child Faniastasia A.
Helene Chowes, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Ellen Ravitch of counsel), for respondent.
Melissa E. Bonaldes, Brooklyn, N.Y., attorney for the child Shaquan A.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger of counsel), attorney for the children Fantrel A. and Nathaniel A.
Gail R. Rich, Brooklyn, N.Y., attorney for the child Faniastasia A.
Opinion
Appeal from an order of fact-finding and disposition of the Family Court, Kings County (Lillian Wan, J.), dated November 24, 2014. The order, after fact-finding and dispositional hearings, found that the father sexually abused and neglected the child Faniastasia A., neglected the child Fantrel A., and derivatively abused and neglected the children Nathaniel A., Fantrel A., and Shaquan A., and, inter alia, placed the father under the supervision of the Administration for Children's Services for a period of 12 months.
ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the father under the supervision of the Administration for Children's Services for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of supervision has expired; and it is further,
ORDERED that the order of fact-finding and disposition is modified, on the facts and in the exercise of discretion, by deleting the provision thereof finding that the father derivatively abused and neglected the child Nathaniel A., and substituting therefor a provision dismissing those branches of the petitions which alleged that the father derivatively abused and neglected the child Nathaniel A.; as so modified, the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
The petitioner, Administration for Children's Services (hereinafter ACS), filed abuse and neglect petitions against the father alleging that he sexually abused the child Faniastasia A., and derivatively abused the children Nathaniel A. and Fantrel A. based on his sexual abuse of Faniastasia. ACS further alleged that the father used excessive corporal punishment against Faniastasia and Fantrel and medically neglected the children. On or about July 17, 2014, ACS filed an additional petition alleging that the father derivatively abused and neglected the child Shaquan A., who was born after the alleged acts of abuse and neglect occurred. During the pendency of the fact-finding hearing, Nathaniel turned 18, but ACS did not seek dismissal of the petitions with respect to him. In an order of fact-finding and disposition dated November 24, 2014, the Family Court, among other things, found that the father sexually abused and neglected Faniastasia, neglected Fantrel, and derivatively abused and neglected Nathaniel, Fantrel, and Shaquan. The father appeals.
Contrary to the father's contention, the evidence adduced at the fact-finding hearing, including the sworn testimony of the child Faniastasia, was sufficient to prove by the requisite preponderance of the evidence that he sexually abused her (see Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1013, 953 N.Y.S.2d 121; Matter of Alaysha E. [John R.E.], 94 A.D.3d 988, 988, 942 N.Y.S.2d 589; Matter of Bianca M., 282 A.D.2d 536, 536, 722 N.Y.S.2d 766). Moreover, the father's intent to receive sexual gratification (see Penal Law § 130.00[3] ) may be inferred from the nature of the acts committed and the circumstances in which they occurred (see Matter of Lauryn H. [William A.], 73 A.D.3d 1175, 1176, 900 N.Y.S.2d 764; Matter of Daniel R. [Lucille R.], 70 A.D.3d 839, 841, 894 N.Y.S.2d 165; Matter of Kryzstof K., 283 A.D.2d 431, 432, 723 N.Y.S.2d 888).
Furthermore, while parents have the 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 (see Family Ct. Act § 1012[f][i][B]; Matter of Dalia G. [Frank B.], 128 A.D.3d 821, 823, 10 N.Y.S.3d 113; Matter of Matthew M. [Fatima M.], 109 A.D.3d 472, 473, 970 N.Y.S.2d 271; Matter of Delehia J. [Tameka J.], 93 A.D.3d 668, 669, 939 N.Y.S.2d 570; Matter of Padmine M. [Sandra M.], 84 A.D.3d 806, 807, 922 N.Y.S.2d 527). A single incident of excessive corporal punishment may suffice to sustain a finding of neglect (see Matter of Dalia G. [Frank B.], 128 A.D.3d at 823, 10 N.Y.S.3d 113; Matter of Joseph O'D. [Denise O'D.], 102 A.D.3d 874, 875, 958 N.Y.S.2d 731; Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 1314, 944 N.Y.S.2d 923; Matter of Padmine M. [Sandra M.], 84 A.D.3d at 807, 922 N.Y.S.2d 527). Here, the Family Court's finding that the father used excessive corporal punishment against Faniastasia and Fantrel is supported by a preponderance of the evidence (see Matter of Anastasia L.-D [Ronald D.], 113 A.D.3d 685, 687, 978 N.Y.S.2d 347).
Moreover, the Family Court properly found that the father's failure to seek medical attention for Faniastasia's gynecological conditions constituted medical neglect (see Matter of Shawndel M., 33 A.D.3d 1006, 1006, 824 N.Y.S.2d 335; Matter of Nyomi A.D., 10 A.D.3d 684, 686, 783 N.Y.S.2d 596).
While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent (see Family Ct. Act § 1046[a][i]; Matter of Amber C., 38 A.D.3d 538, 540, 831 N.Y.S.2d 478), a finding of abuse or neglect as to one sibling does not mandate a finding of derivative abuse or neglect as to the other siblings (see Matter of David P. [Elisa P.], 130 A.D.3d 739, 740, 13 N.Y.S.3d 498; Matter of Harmony M.E. [Andre C.], 121 A.D.3d 677, 679, 994 N.Y.S.2d 138; Matter of Jeremiah I.W. [Roger H.W.], 115 A.D.3d 967, 969, 982 N.Y.S.2d 516). Under the circumstances of this case, the preponderance of the evidence supported a finding that the father derivatively abused and neglected Fantrel and Shaquan (see Matter of Monica C.M. [Arnold A.], 107 A.D.3d 996, 997, 968 N.Y.S.2d 143; Matter of Kyanna T. [Winston R.], 99 A.D.3d at 1013, 953 N.Y.S.2d 121), but did not support a finding that he derivatively abused and neglected Nathaniel (see Matter of David P. [Elisa P.], 130 A.D.3d at 740, 13 N.Y.S.3d 498; Matter of Padmine M. [Sandra M.], 84 A.D.3d at 807, 922 N.Y.S.2d 527; Matter of Andrew B.-L., 43 A.D.3d 1046, 1048, 844 N.Y.S.2d 337). The evidence established that the father sexually abused Faniastasia while Fantrel was in the home. In addition, the evidence established that the father gave a pill to Faniastasia without knowing what drug the pill contained and refused to seek medical care for her, and such conduct demonstrated flawed reasoning and impaired judgment that put Fantrel and Shaquan at risk. However, Nathaniel turned 18 during the pendency of the fact-finding hearing, and the evidence established that he was not home when the sexual abuse occurred and that the father's conduct did not create a substantial risk of harm to him. As such, there was insufficient evidence to establish that Nathaniel was derivatively abused and neglected.