Opinion
11879 11879A Dkt. No. NN-27543-46/17 Case No. 2019-05095
09-29-2020
IN RE SYEDA A., Children Under the Age of Eighteen Years of Age, etc., Syed I., Respondent–Appellant, v. Administration for Children's Services, Respondent–Respondent.
Leslie S. Lowenstein, Woodmere, for appellant. James E. Johnson, Corporation Counsel, New York (Diana Lawless of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Leslie S. Lowenstein, Woodmere, for appellant.
James E. Johnson, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the children.
Acosta, P.J., Webber, Moulton, Shulman, JJ.
Order of disposition, Family Court, Bronx County (Tracey A. Bing, J.), entered on or about November 7, 2019, to the extent it brings up for review a fact-finding order, same court (Monica D. Shulman, J.), entered on or about October 24, 2018, which found that respondent father neglected his eldest daughter and derivatively neglected the three younger children, unanimously affirmed, without costs. Appeal from fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
A preponderance of the evidence supports the finding that respondent neglected his eldest daughter. The child's out-of-court statement that he punched her in the mouth with a closed fist was corroborated by the out-of-court statements of her two younger sisters submitted through the case-worker's fact-finding testimony, as well as the caseworker's testimony that she saw that the child had a minor laceration on the inside of her lip three days after the incident (see Matter of Antonio S. [Antonio S., Sr.], 154 A.D.3d 420, 420, 61 N.Y.S.3d 226 [1st Dept. 2017] ; Matter of Naomi J. [Damon R.], 84 A.D.3d 594, 923 N.Y.S.2d 467 [1st Dept. 2011] ). We see no basis for disturbing the court's credibility determinations. That the child's injuries were the result of a single incident does not preclude a finding of excessive corporal punishment (see Matter of Alyssa–Marie D. [Richard Luke D.], 171 A.D.3d 493, 494, 95 N.Y.S.3d 806 [1st Dept. 2019] ). Contrary to respondent's contention, the court had jurisdiction to adjudicate the neglect petition regarding the eldest daughter, although she attained the age of majority before the dispositional order was issued, because the proceeding was commenced before the child's 18th birthday ( Matter of Mylasia P. [Brenda P.], 104 A.D.3d 856, 961 N.Y.S.2d 531 [2d Dept. 2013] ).
The finding of derivative neglect regarding the three younger children is supported by a preponderance of the evidence, i.e., respondent's inappropriate and excessive corporal punishment of the older child, which demonstrates a sufficiently faulty understanding of parental duties to warrant the inference that respondent is an ongoing danger to those children (see Family Court Act § 1046[a][i] ; see Matter of Syed I., 61 A.D.3d 580, 877 N.Y.S.2d 318 [1st Dept. 2009] ; Matter of Nataysha O. [Manuel O.], 135 A.D.3d 660, 661, 25 N.Y.S.3d 88 [1st Dept. 2016] ; Matter of Joseph C. [Anthony C.], 88 A.D.3d 478, 479, 931 N.Y.S.2d 44 [1st Dept. 2011] ). Moreover, the record shows that the three younger children were in the home when the incident occurred and that two of them were aware of what was happening and saw the eldest daughter's injuries.