Summary
finding of neglect supported by parent's storage of accessible and illegal firearms in the home
Summary of this case from In re Ta.C.Opinion
2015-02-26
In re NINOSHKA M., and Others, Children Under the Age of Eighteen Years, etc., Liz R., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
The Bronx Defenders, New York (Lauren Teichner of counsel), and Boris Bershteyn, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
The Bronx Defenders, New York (Lauren Teichner of counsel), and Boris Bershteyn, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Neal D. Futerfas, White Plains, attorney for the children Ninoshka M., Jose R., and Gloria R.
GONZALEZ, P.J., MAZZARELLI, ACOSTA, MOSKOWITZ, DeGRASSE, JJ.
Orders of disposition, Family Court, Bronx County (Linda B. Tally, J.), entered on or about August 19, 2013, to the extent they bring up for review a fact-finding order, same court (Gayle P. Roberts, J.), which, after a hearing, determined that respondent mother neglected her four children, unanimously modified, on the law, to vacate the neglect finding as to Moises M., and otherwise affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeals from the order of disposition.
Although the evidence does not support a finding that respondent mother was engaged in illicit gun trading, the Family Court's finding of neglect is supported by a preponderance of the evidence, which established that respondent was storing illegal guns in the home where the children, including two teenagers, had access to them, thus showing impaired parental judgment ( see Matter of Kevin N. [Richard D.], 113 A.D.3d 524, 524, 980 N.Y.S.2d 382 [1st Dept.2014]; Matter of Fernando S., 63 A.D.3d 610, 883 N.Y.S.2d 469 [1st Dept.2009] ). This determination is supported by respondent's admission that she kept guns in the home, her brother's testimony that he saw her taking a gun he believed was loaded from four men to store in the home while three of the children were present, and by the teenage daughter's out-of-court statements that her mother stored guns in the home, making her feel unsafe, and that her mother did not object when she held one of the guns.
Contrary to respondent's contentions, the Family Court properly found respondent's daughter's out-of-court statements to be sufficiently corroborated by respondent's own admission as well as respondent's brother's testimony concerning his personal observations ( see Matter of Nicole V., 71 N.Y.2d 112, 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987]; Matter of Peter G., 6 A.D.3d 201, 203, 774 N.Y.S.2d 686 [1st Dept.2004], appeal dismissed3 N.Y.3d 655, 782 N.Y.S.2d 693, 816 N.E.2d 566 [2004]; Family Court Act § 1046[a] [vi] ). While the mere repetition by the daughter of the same statement to her uncle and the ACS caseworker is not in itself corroboration, the Family Court was entitled to rely on the consistency of her statements in deeming them credible ( Matter of David R. [Carmen R.], 123 A.D.3d 483, 484, 998 N.Y.S.2d 182 [1st Dept.2014] ). The court properly drew the “strongest possible negative inference” from respondent's failure to testify or offer any evidence ( see e.g. Matter of Mia B. (Brandy R.), 100 A.D.3d 569, 569, 955 N.Y.S.2d 15 [1st Dept.2012], lv. denied20 N.Y.3d 858, 2013 WL 452145 [2013] ).
Finally, since the neglect petition regarding Moises M. was dismissed on May 16, 2012, when he turned 18 years old, there was no basis for entering a finding of neglect as to him ( seeFamily Court Act § 1012[f] ).