Summary
In Matter of James S., 88 AD3d 1006 (2nd Dept., 2011), the child's out-of-court statements were corroborated by the caseworker's observation of the child's injury.
Summary of this case from In re Sabrina F.G.Opinion
2011-10-25
In the Matter of JAMES S. (Anonymous).Administration for Children's Services, respondent;Kathleen S. (Anonymous), appellant. (Proceeding No. 1)In the Matter of Nicholas R.W. (Anonymous).Administration for Children's Services, respondent;Kathleen S. (Anonymous), appellant. (Proceeding No. 2).
Cabelly & Calderon, Jamaica, N.Y. (Alan S. Cabelly of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow of counsel), for respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Richmond County (Wolff, J.), dated October 22, 2010, which, after a hearing, found that she had neglected the child James S. and derivatively neglected the child Nicholas R.W.
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
Contrary to the mother's contention, the Family Court's finding of neglect as to the child James S., based on her use of excessive corporal punishment, is supported by
a preponderance of the evidence ( see Family Ct. Act § 1012[f][i][B]; § 1046[b][i] ). That child's out-of-court statement regarding the use of corporal punishment by the mother was sufficiently corroborated by a caseworker's observation of the injury ( see Matter of Isaiah S., 63 A.D.3d 948, 949, 880 N.Y.S.2d 528; Matter of Derek J., 56 A.D.3d 558, 558–559, 867 N.Y.S.2d 507; Matter of Joshua B., 28 A.D.3d 759, 760–761, 814 N.Y.S.2d 210). That evidence, together with a negative inference drawn from the mother's failure to testify, was sufficient to support the Family Court's finding of neglect as to James S. ( see Matter of Maria Daniella R. [ Maria A.], 84 A.D.3d 1384, 924 N.Y.S.2d 294; Matter of Charlie S. [ Rong S.], 82 A.D.3d 1248, 920 N.Y.S.2d 187; Matter of Imman H., 49 A.D.3d 879, 854 N.Y.S.2d 517). Furthermore, since the mother's conduct toward James S. demonstrated a fundamental defect in her understanding of parental duties relating to the care of children , there was sufficient evidence from which to make a finding of derivative neglect as to the child Nicholas R.W. ( see family ct. act § 1046[a][i]; see also matter of devontay M., 56 A.D.3d 561, 867 N.Y.S.2d 508; Matter of Nicholas L., 50 A.D.3d 1141, 857 N.Y.S.2d 629).
In addition to the single incident of use of excessive corporal punishment, which is sufficient to sustain a finding of neglect ( see Matter of Alexander J.S. [ David S.], 72 A.D.3d 829, 830, 899 N.Y.S.2d 281; Matter of Rachel H., 60 A.D.3d 1060, 1061, 876 N.Y.S.2d 463), the Family Court's finding that the mother had previously engaged in a pattern of erratic conduct that demonstrated her inability to provide the children with proper supervision or guardianship is supported by a preponderance of the evidence ( see Matter of Ashanti R., 66 A.D.3d 1031, 1032, 888 N.Y.S.2d 130; Matter of Lester M., 44 A.D.3d 944, 945, 844 N.Y.S.2d 123).
ANGIOLILLO, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.