Opinion
2012-11-20
In re JEREMY H., and Others, Dependent Children Under Eighteen Years of Age, etc., Logann K., Respondent–Appellant, Administration for Children's Services of the City of New York, Petitioner–Respondent.
Dora M. Lassinger, East Rockaway, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for respondent.
Dora M. Lassinger, East Rockaway, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel), attorney for the child Jeremy H.
Lawyers For Children, Inc., New York (Ronnie Dane of counsel), attorney for the children Jasir H. And Jyeh H.
TOM, J.P., ANDRIAS, SAXE, ACOSTA, FREEDMAN, JJ.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about December 8, 2011, which, following a fact-finding hearing, determined that appellant mother had neglected Jasir–Keiomura H. and Jeremy H., and derivatively neglected Jyeh–Keiyonce H., and committed custody and guardianship of the children to their maternal grandmother, directed the mother to submit to a mental health evaluation, and limited her visitation to bi-weekly supervised visits, unanimously affirmed, without costs. Appeal from the fact-finding order, same court and Judge, entered on or about August 16, 2011, unanimously dismissed, without costs, as superseded by the appeal from the order of disposition.
This Court previously held that the mother derivatively neglected two of her other children, finding that the same evidencethat supported the Family Court's findings that the mother had used inappropriate and excessive corporal punishment against two of the subject children, and derivatively neglected the third subject child, demonstrated by a preponderance of the evidence that she had neglected those two children as well (Matter of Jacob H. [Logann K.], 94 A.D.3d 628, 942 N.Y.S.2d 353 [1st Dept. 2012],lv. dismissed19 N.Y.3d 952, 950 N.Y.S.2d 98, 973 N.E.2d 196 [2012] ). That finding is law of the case ( see Kenney v. City of New York, 74 A.D.3d 630, 630–631, 903 N.Y.S.2d 53 [1st Dept. 2010] ).
In any event, considering the merits of the mother's arguments raised on this appeal, we conclude that the findings of neglect and derivative neglect as to the subject children were supported by a preponderance of the evidence. Such evidence included the testimony of a caseworker that Jeremy stated that the mother hit him in the head with a closed fist and that he got the “worse” of all the children, and that Jasir told her that the mother hit her with a belt, a ruler, and a spoon that felt “like a rock.” The caseworker also observed four healing nail marks on one child's arm, and the medical records noted scratches on Jasir that were too numerous to have occurred in the normal course. Moreover, the court was entitled to draw the strongest negative inference from the mother's failure to testify in the proceedings ( see Matter of Taylor C. [Christin C.], 89 A.D.3d 405, 406, 931 N.Y.S.2d 852 [1st Dept. 2011] ). The out-of-court statements of Jasir and Jeremy to the caseworker were corroborated by the caseworker's testimony, the medical records of Jasir, and the consistent account of those two children ( see Matter of Keisha McL., 261 A.D.2d 341, 342, 691 N.Y.S.2d 428 [1st Dept. 1999] ). This evidence also amply supported the court's finding of derivative neglect.
The mother asserts that the court improperly limited her visits to bi-weekly supervised visits at the agency. The court properly exercised its discretion in limiting the mother's visits where she had not visited consistently in the past and her mental condition appeared to be deteriorating.
We have considered the mother's other arguments, and find them unavailing.