Opinion
9439
05-28-2019
IN RE JUSTIN E., and Another, Children Under Eighteen Years of Age, etc., Jose N.-R., Respondent-Appellant, v. Administration for Children’s Services, Petitioner-Respondent, Maria E., Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ashley R. Garman of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ashley R. Garman of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.
Sweeny, J.P., Richter, Kapnick, Oing, Singh, JJ.
Order, Family Court, New York County (Jane Pearl, J.), entered on or about September 8, 2017, which, to the extent appealed from as limited by the briefs, found that respondent neglected a child for whom he was legally responsible and derivatively neglected his own child, unanimously affirmed, without costs.
The finding of neglect was supported by a preponderance of the evidence ( Family Ct Act § 1046[b][i] ). The out-of-court statements by the child regarding a domestic incident involving respondent and her mother in the child's presence were sufficiently corroborated by respondent's own statements to the caseworker (see Matter of Nicole V., 71 N.Y.2d 112, 118–119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ), and the court was entitled to reject the purported exculpatory explanation of the incident that respondent gave to the caseworker (see Matter of Rashawan J. [Veronica H.-B.], 159 A.D.3d 1436, 1437 [4th Dept. 2018]. The court also properly drew a negative inference from respondent's failure to testify and explain the statement or offer any evidence (see e.g. Matter of Mia B. [Brandy R.], 100 A.D.3d 569, 955 N.Y.S.2d 15 [1st Dept. 2012], lv denied 20 N.Y.3d 858, 960 N.Y.S.2d 350, 984 N.E.2d 325 [2013] ). Furthermore, the child's statement that she was afraid of respondent demonstrated an imminent risk of emotional and physical impairment (see Matter of Serenity H. [Tasha S.], 132 A.D.3d 508, 509 [1st Dept. 2015] ; see also Matter of Carmine G. [Franklin G.], 115 A.D.3d 594, 982 N.Y.S.2d 318 [1st Dept. 2014] ).
The finding of derivative neglect was warranted because respondent's actions demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in his care (see Matter of Deandre C. [Luis D.], 169 A.D.3d 609, 92 N.Y.S.3d 886 [1st Dept. 2019] ).
We have considered respondent's remaining contentions and find them unavailing.