| Matter of Jesse XX. (Marilyn ZZ.) |
| 2010 NY Slip Op 00599 [69 AD3d 1240] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jesse XX., a Child Alleged to be Neglected.Chenango County Department of Social Services, Respondent; Marilyn ZZ., Appellant.(Proceeding No. 1.) (And Another Related Proceeding.) In the Matter of Jesse XX., a ChildAlleged to be Neglected. Chenango County Department of Social Services, Respondent; RussellXX., Appellant. (Proceeding No. 3.) (And Another Related Proceeding.) In the Matter of PeggyYY. and Another, Children Alleged to be Neglected. Chenango County Department of SocialServices, Respondent; Marilyn ZZ., Appellant. (Proceeding No. 5.) In the Matter of Peggy YY.and Another, Children Alleged to be Neglected. Chenango County Department of SocialServices, Respondent; Russell XX., Appellant. (Proceeding No. 6.) |
—[*1] Samuel D. Castellino, Elmira, for Russell XX., appellant. Jody P. Eckert, Chenango County Department of Social Services, Norwich, for respondent. Christopher A. Pogson, Law Guardian, Binghamton. Ian R. Arcus, Law Guardian, Albany.
Garry, J. Appeals from five orders of the Family Court of Chenango County (Sullivan, J.),entered September 30, 2008, which granted petitioner's applications, in proceedings pursuant toFamily Ct Act article 10, to adjudicate respondents' children to be neglected.
Respondent Russell XX. (hereinafter the father) and respondent Marilyn ZZ. (hereinafter themother) are the parents of one daughter born in 2005 (hereinafter the youngest child). Themother has a daughter born in 1993 (hereinafter the middle child) and another daughter born in1992 (hereinafter the oldest child). The mother and father lived with the oldest and middlechildren for approximately five years before these proceedings were commenced, and theyoungest child from the time of her birth.
In August 2007, petitioner commenced the first two proceedings with respect to the [*2]youngest child, alleging that respondents had failed to provide herwith appropriate housing and medical care, that the father had dropped her while intoxicated onseveral occasions, that the mother had failed to take adequate steps to protect the child, and thatrespondents suffered from mental or emotional disabilities that prevented them from providingadequate supervision and care. In December 2007, petitioner commenced the third and fourthproceedings alleging that the youngest child was derivatively neglected due to the father'salleged sexual abuse of the oldest child, his physical and verbal abuse of the middle and oldestchildren, and the mother's failure to intervene. Petitioner commenced the fifth and sixthproceedings in January 2008, alleging that the father physically and verbally abused the middleand oldest children, sexually abused the oldest child, and was under the influence of alcohol orsuffering from a mental or emotional disability at the time of these events. Petitioner furtheralleged in those proceedings that respondents confiscated the children's earnings and sold theirbelongings in order to purchase alcohol or tobacco and that the mother had failed to providethem with adequate medical, optical, and dental care and had not taken adequate steps to protectthem from the father.
In March 2008, Family Court conducted an in camera hearing at which the middle and oldestchildren testified. The court subsequently conducted an extensive fact-finding hearing and, inSeptember 2008, issued a decision that sustained the allegations of each petition, followed bydeterminations on fact-finding that adjudicated all three children to be neglected with respect toboth respondents and by orders of disposition that placed the children with third parties.Respondents now appeal.[FN*]
We reject respondents' contention that Family Court's adjudication of neglect wasinadequately supported. Petitioner bore the burden of proving by a preponderance of theevidence that the children were harmed or in imminent danger of harm as a result of respondents'failure "to exercise a minimum degree of care" (Family Ct Act § 1012 [f] [i]; seeMatter of Larenzo SS., 289 AD2d 880, 882 [2001]; Matter of Christopher JJ., 281AD2d 720, 721 [2001]). The evidence was sufficient to meet petitioner's burden. Severalwitnesses testified about the father's frequent abuse of alcohol and his violent behavior, such ashitting, slapping, and spanking the children, hitting the mother in the children's presence,flipping over a couch on which a child was seated, and choking a child and throwing her across aroom. The father sexually abused the oldest child on two occasions, at one of which the motherwas present. Witnesses testified that he exhibited strange behavior, such as isolating himselffrom others, talking to himself, and repetitively describing incidents that never occurred, and thathe threatened and verbally abused petitioner's caseworkers. There was testimony thatrespondents did not provide the children with necessary medical, dental, and optical care, andthat they often spent their limited income on alcohol and cigarettes or confiscated the olderchildren's earnings for such purposes instead of purchasing necessary items such as diapers,bedding, and hygiene [*3]products. During a period ofhomelessness, respondents permitted a neighbor to make housing arrangements for the oldestand middle children but refused to allow the youngest child to join them, although this requiredher to live with respondents in a tent; they also refused to accept available housing that wouldhave required them to give up their dogs. The mother made excuses for the father, left thechildren in his care when he was drinking or drunk, and testified that she was willing torelinquish her rights to the two older children and would not leave the father under anycircumstances. There was also testimony that the mother had put credit cards and billingaccounts in the children's names because of respondents' poor credit history.
The father did not testify at the fact-finding hearing, entitling Family Court to draw thestrongest inferences against him permitted by the evidence (see Matter of Nassau CountyDept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; Matter of Vivian OO., 34 AD3d1111, 1114 [2006], lv denied 8 NY3d 808 [2007]; Matter of Antonio NN., 28 AD3d826, 828 [2006]). As to the mother, the court's assessment of her credibility is entitled togreat deference (see Matter of Megan G., 291 AD2d 636, 637 [2002]; Matter of KatieR., 251 AD2d 698, 699 [1998], lv denied 92 NY2d 809 [1998]), and its rejection ofher claim that the various witnesses against her were lying is soundly supported by, among otherthings, the multiple inconsistencies and contradictions in her testimony. We therefore find thatthe court's neglect determinations are fully supported by the evidence and need not be disturbed.
Respondents further argue that their due process rights were violated by the manner in whichFamily Court conducted the in camera hearing, in that neither they nor their counsel were presentand they had no opportunity to cross-examine the children. However, respondents did not objectwhen petitioner initially made a written request for this hearing and advised that, alternatively, itwould subpoena the testimony of the two older children. Respondents further made no objectionand did not ask to be present when the court later advised the parties of the procedures it wouldfollow and directed them to submit questions, which the father did. Finally, in a conference withcounsel after the hearing, the court summarized the children's testimony, indicated that it hadfound them both to be credible, and stated that transcripts could be obtained if necessary.Respondents neither requested transcripts nor an opportunity to cross-examine the children at thesubsequent fact-finding hearing. Thus, respondents have failed to preserve this claim for review(see Matter of Sabrina M., 6 AD3d759, 761 [2004]; Matter of Megan G., 291 AD2d at 640; Matter of JenniferWW., 274 AD2d 778, 779 [2000], lv denied 95 NY2d 764 [2000]).
Mercure, J.P., Peters, Lahtinen and Kavanagh, JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote *: Although respondents' noticesof appeal purport to appeal from Family Court's decision resolving these proceedings, no appeallies from a decision of Family Court (see Family Ct Act § 1112 [a]; Matter of Gunthorpe v Cathey, 52AD3d 907, 908 n [2008]; see also CPLR 5512 [a]; Family Ct Act § 165). Wewill nevertheless exercise our discretion and treat the premature notices of appeal as being validappeals from the orders of fact-finding (see Matter of Linda D. v Renee D., 40 AD3d 1201, 1202 n 2[2007]; Matter of Rebecca KK., 31AD3d 830, 831 n [2006]).