| Matter of Lindsey BB. (Ruth BB.) |
| 2010 NY Slip Op 01393 [70 AD3d 1205] |
| February 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Lindsey BB. and Another, Children Alleged to beNeglected. Columbia County Department of Social Services, Respondent; Ruth BB. et al.,Appellants. |
—[*1] Cliff Gordon, Monticello, for Mark BB., appellant. Columbia County Department of Social Services, Hudson (James A. Carlucci of counsel),for Columbia County Department of Social Services, respondent. Jehed Diamond, Law Guardian, Delhi.
Mercure, J.P. Appeals from two orders of the Family Court of Columbia County (Czajka, J.),entered July 16, 2008 and September 16, 2008, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to adjudicate respondents' children to beneglected.
Respondents, Ruth BB. (hereinafter the mother) and Mark BB. (hereinafter the father), arethe parents of the subject children, a daughter (born in 1992) and a son (born in 1994). Thepetition alleged that respondents were involved in verbal and physical altercations in thechildren's presence, that the father physically abused both children and that respondents abusedmarihuana and cocaine while caring for them. Family Court ultimately found the children to beneglected by both respondents and ordered that the children continue to be placed withpetitioner. Respondents now appeal from both the order sustaining the petition and thedispositional order, [*2]and we affirm.
Contrary to respondents' argument, Family Court's findings of neglect were supported by apreponderance of the evidence (see Family Ct Act § 1046 [b] [i]). Initially, muchof the evidence of neglect here comes from out-of-court statements made by the children that,absent corroboration, would be insufficient to support a finding of neglect (see Family CtAct § 1046 [a] [vi]). Any evidence that tends to support the reliability of an out-of-courtstatement, however, will provide that corroboration (see Family Ct Act § 1046 [a][vi]; Matter of Aaliyah B. [ClarenceB.], 68 AD3d 1483, 1484 [2009]). In this case, the children's out-of-court statementsdiscussed many of the same events and, thus, cross-corroborated one another (see Matter ofNicole V., 71 NY2d 112, 124 [1987]; Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lvdenied 12 NY3d 706 [2009]). The out-of-court statements were further supported in manyinstances by other evidence in the record, including the sworn testimony of the parents and thechildren.[FN*]In short, while some portions of the children's out-of-court statements were not sufficientlycorroborated, the bulk of the statements were, and Family Court appropriately exercised itsdiscretion in considering them (see Matter of Nicole V., 71 NY2d at 119; Matter ofCobane v Cobane, 57 AD3d at 1321).
Thus corroborated, the evidence established that both respondents often resorted to violenceduring their constant arguments, including slapping, shoving and one occasion where onerespondent threw or pushed a computer monitor at the other. Both children were aware of thisbehavior and, indeed, the daughter was so disturbed by respondents' conduct that she called 911to report that the mother had been struck by the father. Moreover, the father behaved in anemotionally abusive fashion by threatening to remove all of the daughter's possessions from herbedroom as punishment, forcing her to hide her prized possessions at school out of fear that thefather would destroy them. Proof was also presented that respondents owned drug paraphernaliaand that both they and visitors to the family residence frequently used marihuana and cocaine inthe presence of the children. The mother's cocaine use was further confirmed by a positive drugtest. Respondents denied using illegal drugs and allegedly underwent a substance abusetreatment evaluation, but they refused to provide any documentation that would support theirclaims. This evidence, taken as a whole, amply supports Family Court's finding that respondentsneglected the subject children (seeMatter of Gregory S., 39 AD3d 552 [2007]; Matter of Andrew DeJ. R., 30 AD3d 238, 239 [2006]; Matter of Michelle L., 24 AD3d443, 444 [2005]; Matter of RichardT., 12 AD3d 986, 987-988 [2004]).
Respondents' remaining claim, that they were improperly excluded from a hearing [*3]conducted with the subject children, is without merit. Whilerespondents are entitled to due process in this neglect proceeding, they had no absolute right tobe present at every step of the trial (see Matter of Randy A., 248 AD2d 838, 839-840[1998]). Our review of the record reveals that Family Court appropriately balanced respondents'due process right against "the desire to protect the [children's] mental and emotional well-being"by permitting counsel to cross-examine the children in the absence of respondents themselves(id. at 840; see Matter of SylviaJ., 23 AD3d 560, 561-562 [2005], lvs denied 7 NY3d 703 [2006]).
Spain, Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: The children recanted a numberof their allegations in their sworn testimony, but that created a credibility issue for Family Courtto resolve (see Matter of Kayla N.,41 AD3d 920, 922 [2007]; Matter of Karen BB., 216 AD2d 754, 756 [1995]).Family Court did not abuse its discretion in declining to credit those recantations, particularly asthe father admittedly displayed the allegations in the neglect petition to the children anddiscussed the allegations with them prior to their testimony, violating an order of protection in sodoing (see Matter of Caitlyn U., 46AD3d 1144, 1146-1147 [2007]; Matter of Karen BB., 216 AD2d at 756).