Opinion
2013-01-23
In the Matter of JOSEPH O'D. (Anonymous). Orange County Department of Social Services, respondent; Denise O'D. (Anonymous), appellant. (Proceeding No. 1). In the Matter of James P. (Anonymous). Orange County Department of Social Services, petitioner-respondent; Denise O'D. (Anonymous), appellant, et al., respondent. (Proceeding No. 2).
Richard L. Herzfeld, New York, N.Y., for appellant. David L. Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for respondent in Proceeding No. 1 and petitioner-respondent in Proceeding No. 2.
Richard L. Herzfeld, New York, N.Y., for appellant. David L. Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), for respondent in Proceeding No. 1 and petitioner-respondent in Proceeding No. 2.
Kelli M. O'Brien, Goshen, N.Y., attorney for the children.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In two related child protective proceedings pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Orange County (Bivona, J.), entered October 4, 2011, as, after a hearing, found that she had neglected the child Joseph O'D. and derivatively neglected the child James P.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
After a fact-finding hearing under Family Court Act article 10, any finding that a child is abused or neglected must be based on a preponderance of the evidence ( seeFamily Ct. Act § 1046[b]; Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 1313, 944 N.Y.S.2d 923;Matter of Dareth O., 304 A.D.2d 667, 668, 758 N.Y.S.2d 372). Neglect may be established by even a single incident of excessive corporal punishment ( see Matter of Yanni D. [Hope J.], 95 A.D.3d at 1313, 944 N.Y.S.2d 923;Matter of Padmine M. [Sandra M.], 84 A.D.3d 806, 807, 922 N.Y.S.2d 527;Matter of Rachel H., 60 A.D.3d 1060, 1061, 876 N.Y.S.2d 463). The Family Court's assessment of the credibility of witnesses is entitled to considerable deference ( see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337;Matter of Yanni D. [Hope J.], 95 A.D.3d at 1313, 944 N.Y.S.2d 923;Matter of Sadiq H. [Karl H.], 81 A.D.3d 647, 647, 915 N.Y.S.2d 867).
Here, contrary to the mother's contention and the position of the attorney for the children, the Family Court's finding of neglect of the child Joseph O'D. was supported by a preponderance of the evidence ( seeFamily Ct. Act § 1012[f][i][B]; Matter of James S. [Kathleen S.], 88 A.D.3d 1006, 1006–1007, 931 N.Y.S.2d 524;Matter of Padmine M. [Sandra M.], 84 A.D.3d at 807, 922 N.Y.S.2d 527;Matter of Sadiq H. [Karl H.], 81 A.D.3d at 647, 915 N.Y.S.2d 867). The child's out-of-court statements that his mother hit and scratched him were sufficiently corroborated by testimony from the child's caseworker and from two police officers, all of whom observed the child's injuries. Moreover, the nature of the subject child's injuries supported a finding of excessive corporal punishment ( see Matter of Yanni D. [Hope J.], 95 A.D.3d at 1314, 944 N.Y.S.2d 923). This evidence, together with the negative inference drawn from the mother's failure to testify, was sufficient to support the Family Court's finding ( see Matter of Alanah M. [Donnie M.], 96 A.D.3d 757, 758, 945 N.Y.S.2d 760;Matter of Charlie S. [Rong S.], 82 A.D.3d 1248, 1249, 920 N.Y.S.2d 187;Matter of Imman H., 49 A.D.3d 879, 880, 854 N.Y.S.2d 517;Matter of Tajani B., 49 A.D.3d 876, 876–877, 854 N.Y.S.2d 518).
The evidence also supported the finding that the mother derivatively neglected the child James P. ( seeFamily Ct. Act § 1046[a][i]; see also Matter of Devontay M., 56 A.D.3d 561, 562, 867 N.Y.S.2d 508;Matter of Nicholas L., 50 A.D.3d 1141, 1142, 857 N.Y.S.2d 629).
Since the father did not appeal from the order, the contention of the attorney for the children that the record did not supporta finding of neglect against him is not properly before this Court.