| Matter of Bianca QQ. (Kiyonna SS.) |
| 2010 NY Slip Op 05824 [75 AD3d 679] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Bianca QQ. and Another, Children Alleged to beAbused and/or Neglected. Clinton County Department of Social Services, Respondent; KiyonnaSS., Appellant. |
—[*1] Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent. Aaron Turetsky, Keeseville, attorney for the children.
Stein, J. Appeals from two orders of the Family Court of Clinton County (Lawliss, J.),entered July 2, 2009 and August 27, 2009, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent'schildren to be neglected.
Respondent is the mother of Bianca QQ. (born in 2001) and Joseph RR. (born in 2003).Respondent and the children, accompanied by respondent's live-in paramour, moved from NewJersey to Clinton County in July 2008. During the ensuing school year, the children informedschool officials that they were regularly beaten by both adults and that they were often left homealone. Following an investigation, petitioner commenced this abuse and neglect proceedingalleging, among other things, that respondent used excessive corporal punishment and failed to[*2]provide adequate supervision,[FN1]and the children were temporarily removed from respondent's care. After a fact-finding hearing,Family Court found the children to be neglected within the meaning of Family Ct Act §1012, ordered their continued placement with petitioner and issued an order of protection againstrespondent.[FN2]Respondent appeals, arguing that Family Court's finding of neglect is not supported by apreponderance of the evidence. We disagree.
In order to support a finding of neglect, petitioner was required to demonstrate that thephysical, mental or emotional condition of the children was impaired or in imminent danger ofbecoming impaired as a result of respondent's failure to exercise a minimum degree of care(see Family Ct Act § 1012 [f] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). Preliminarily,we note that, although the children did not testify, their out-of-court statements were sufficientlycorroborated by the sworn testimony of several witnesses or cross-corroborated by each other'srecitation of the same events (see Family Ct Act § 1046 [a] [vi]; Matter of Lindsey BB. [Ruth BB.], 70AD3d 1205, 1206-1207 [2010]; Matter of Ian H., 42 AD3d 701, 703 [2007], lv denied 9NY3d 814 [2007]).
As to the allegations involving respondent's failure to provide proper supervision(see Family Ct Act § 1012 [f] [i] [B]), Bianca told her first-grade teacher that sheoften baby-sat for Joseph and prepared meals for both of them—including grilled cheesesandwiches—because they were frequently left home alone. In that regard, a teacher'sassistant testified that, after school one January afternoon, she observed the two childrenstanding outside the doorway of their home with their backpacks on. The children were stillstanding there when the assistant again passed by the home approximately an hour later. Thenext day, Bianca informed the assistant that she had lost her key and that the children had beenwaiting for an adult to come home and let them in. On another occasion, neither respondent norher paramour arrived to pick up the children from school. School personnel contactedrespondent, who requested that the children—then seven and five years old—beallowed to walk home alone, where a babysitter would purportedly meet them. A schoolemployee escorted the children home, but, as there was no one present to care for them, theyreturned to school to wait for respondent, who eventually left work early to get them.
Witness testimony also substantiated the claims of both children that respondentadministered regular "whoopings" to them with a belt—often striking them with the belt'smetal buckle. Indeed, several witnesses testified that they observed bruising on Bianca's fingersand feet and scars on her back and knee. When questioned about the injuries, Bianca stated thatthey were the result of being struck with a belt. Similarly, a school psychologist noticed a bruiseon Joseph's head that Joseph reported was caused by a belt. Moreover, both children informedschool officials that they were instructed not to discuss what transpired in their home and wereinitially reluctant to do so because they were afraid of being punished. In fact, the record revealsthat the children lived in perpetual fear of a "whooping." A Child Protective Services caseworker[*3]testified that, immediately following the children's removalfrom their home, the children indicated that they did not want to be taken to petitioner's facilitybecause respondent and her paramour knew where the building was located. The caseworkerfurther testified that the children then declared "if they come here we'll get a beating."
In light of the foregoing, Family Court found that the children were in imminent danger ofimpairment due to respondent's failure to exercise a minimum degree of care. Notably, even asingle incident of excessive corporal punishment can support a finding of neglect (see Matter of Aaliyah Q., 55 AD3d969, 970 [2008]) and actual physical injury or impairment of the child is not required.Moreover, while both respondent and her paramour testified that neither of them struck thechildren and had various explanations for the children's alleged bruises, Family Court gave noweight to the testimony of either witness. According due deference to Family Court's credibilitydeterminations, we have no difficulty concluding that Family Court's finding of neglect issupported by a sound and substantial basis in the record (see Matter of Christian EE., 33 AD3d 1106, 1106-1107 [2006]; Matter of Collin H., 28 AD3d806, 808-809 [2006]; Matter of Danielle YY., 188 AD2d 894, 896 [1992], lvdenied 81 NY2d 706 [1993]; seegenerally Matter of Omavi A. [Jaimyce A.], 68 AD3d 1463, 1464-1465 [2009]).
Finally, the record reveals that respondent consented to Family Court's dispositional order.Accordingly, "[b]ecause no appeal lies from an order entered on consent" (Matter of Mary UU. [MichaelUU.—Marie VV.], 70 AD3d 1227, 1228 [2010]), respondent's appeal challengingsuch order must be dismissed (seeMatter of Fantasia Y., 45 AD3d 1215, 1216 [2007]; Matter of Michael CC., 216AD2d 740 [1995]).
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order enteredAugust 27, 2009 is affirmed, without costs. Ordered that the appeal from the order entered July2, 2009 is dismissed, without costs.
Footnote 1: A separate petition was filedagainst respondent's paramour.
Footnote 2: Respondent's motion to dismissthose portions of the petition alleging that she abused the children was granted by Family Court.