| Matter of Dylan TT. (Kenneth UU.) |
| 2010 NY Slip Op 06019 [75 AD3d 783] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Dylan TT. and Others, Children Alleged to beNeglected. Madison County Department of Social Services, Respondent; Kenneth UU.,Appellant. |
—[*1] Julie A. Jones, Madison County Department of Social Services, Wampsville, for respondent. Marian J. Cerio, Canastota, attorney for the children.
Mercure, J.P. Appeal from an order of the Family Court of Madison County (McDermott,J.), entered March 25, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate the subject children to be neglected.
Respondent is the father of two girls, born in 2005 and 2006, and the stepfather of a boy,born in 2003. Petitioner commenced this neglect proceeding, alleging that, in separate 2008incidents, respondent struck his stepson in the face after he soiled himself, and picked him upand threw him to the floor, causing bruising and abrasions.[FN*]At the conclusion of a fact-finding hearing, Family Court found that respondent had neglectedhis stepson and derivatively neglected [*2]his daughters. FamilyCourt thereafter issued a dispositional order placing respondent under petitioner's supervisionand imposing an order of protection against him. Respondent now appeals and, inasmuch asFamily Court's finding of neglect is supported by a preponderance of the evidence in the record(see Family Ct Act § 1046 [b] [i]), we affirm.
Respondent argues that his stepson's out-of-court statements regarding the incidents were notsufficiently corroborated by evidence tending to support their reliability (see Family CtAct § 1046 [a] [vi]; Matter ofCobane v Cobane, 57 AD3d 1320, 1321 [2008], lv denied 12 NY3d 706 [2009];Matter of Corey C., 20 AD3d736, 737 [2005]). We note, however, that the mother witnessed the May 2008 incident andtestified that respondent—despite her efforts to restrain him—screamed at thestepson and struck him in the face after a toilet training accident. With regard to the September2008 incident, the stepson stated that he was walking in front of respondent, who becameirritated at his stepson's slow pace, picked him up and threw him down a hallway. After thatincident, several individuals testified to observing abrasions, red marks and bruising on thestepson's face and neck, and a contemporaneous photograph shows abrasions on his nose andcheek. Furthermore, the mother testified that the stepson was afraid of respondent and wouldcower or hide when respondent was present, and respondent admitted that the stepson sometimesflinched when he approached. Contrary to respondent's contentions, this testimonial andphotographic evidence corroborated the stepson's out-of-court statements (see Matter of Justin O., 28 AD3d877, 878 [2006]; Matter of Michael W., 263 AD2d 684, 685 [1999]).
Moreover, the foregoing provides a sound and substantial basis to support Family Court'sfinding that the stepson's "physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired as a result of [respondent's] failure . . . toexercise a minimum degree of care . . . in providing the child with propersupervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or asubstantial risk thereof" (Family Ct Act § 1012 [f] [i]). Respondent repeatedly acted in amanner that not only could have, but did, injure the stepson, and his actions left the stepson in astate of fear. Accordingly, there was a "showing of 'imminent danger' of harm or impairmentsuffic[ient] to establish that [the stepson] was a neglected child" (Matter of Collin H., 28 AD3d806, 809 [2006], quoting Family Ct Act § 1012 [f] [i]; see Matter of Corey C.,20 AD3d at 738; cf. Matter of Anthony PP., 291 AD2d 687, 688-689 [2002]).
Finally, because respondent's actions evince "such an impaired level of parental judgment asto create a substantial risk of harm for any child in [his] care," Family Court properly determinedthat he had derivatively neglected his two daughters (Matter of Daniella HH., 236 AD2d715, 716 [1997]; see Matter of StevenL., 28 AD3d 1093 [2006], lv denied 7 NY3d 706 [2006]).
Peters, Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: A separate neglect petition,filed against the mother of the children, was adjourned in contemplation of dismissal.