Opinion
June 22, 1995
Appeal from the Family Court of Clinton County (McGill, J.).
Petitioner filed petitions pursuant to Family Court Act article 10 alleging that respondents, Kelly I. (hereinafter respondent) and her husband, Michael I. (hereinafter Michael), had abused and neglected Tiffany H. (born in 1984), Jessica H. (born in 1987) and Jamie I. (born in 1990), children in their custody. Jamie is the daughter of respondent and Michael, Tiffany is the daughter of respondent and another man who is not a party to this proceeding, and Jessica is respondent's niece who was living with respondent and Michael at the time of the petition.
The petition alleged that Jessica and Tiffany were abused and neglected based upon bruises on their buttocks and lower back which were the result of a severe spanking by Michael in the presence of and with the cooperation of respondent. Both respondent and Michael were arrested and charged with assault in the third degree as a result of the spanking; they each pleaded guilty to harassment. The petition further alleged that respondent left Tiffany in the care of respondent's mother and stepfather, knowing that her stepfather is a pedophile, and resulting in Tiffany being sexually abused by this man. The alleged abuse and neglect of Jamie is derivative in nature. After an evidentiary hearing, at which two caseworkers, a school nurse, a State Police Investigator, a physician, respondent and Michael testified, Family Court determined that respondent and Michael had neglected the children. Only respondent appeals.
Family Court's determination of the credibility of the witnesses is entitled to great weight ( see, Matter of James P., 194 A.D.2d 467, lv denied 82 N.Y.2d 659; Matter of Claudia C., 103 A.D.2d 845) and should not be set aside by this Court unless it is clearly unsupported by the record ( see, Matter of Nikkia C., 187 A.D.2d 581; Matter of Scott X., 184 A.D.2d 866). With respect to the spanking, Family Court held that "[t]he facts show, by a preponderance of the evidence, that the injuries sustained by the children were of such a nature as would ordinarily not be sustained except by reason of the acts of [respondent] and Michael". Family Court found respondent's explanation regarding the children's injuries to be "incredible" ( see, Matter of Jamie J., 209 A.D.2d 896). Further, Family Court determined that respondent's lack of guardianship, evidenced by the placing of her children in close proximity to a pedophile who ultimately sexually abused one of the children, constituted neglect.
Petitioner demonstrated by overwhelming evidence that respondent's cooperation in the severe and excessive spanking inflicted by Michael, coupled with her inaction in preventing such offensive treatment, constituted neglect ( see, Matter of Maroney v. Perales, 102 A.D.2d 487). Equally as compelling was the proof of respondent's knowledge of her stepfather's pedophilic propensities and, therefore, the danger to which she was exposing the children when placing them in close proximity to him; respondent's lack of guardianship eventually provided this man the opportunity to sexually abuse Tiffany, an opportunity upon which he acted ( see, Matter of Kasey C., 182 A.D.2d 1117, lv denied 80 N.Y.2d 757).
We conclude that the record clearly supports Family Court's decision ( see, Northern Westchester Professional Park Assocs. v Town of Bedford, 60 N.Y.2d 492, 499; Matter of Tami G., 209 A.D.2d 869, 870, lv denied 85 N.Y.2d 804).
Mikoll, J.P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs.