| Matter of Annastasia C. (Carol C.) |
| 2010 NY Slip Op 08254 [78 AD3d 1579] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Annastasia C. and Others. Cattaraugus CountyDepartment of Social Services, Respondent; Carol C., Appellant. (Appeal No.3.) |
—[*1] Stephen J. Riley, Olean, for petitioner-respondent. Schavon R. Morgan, Attorney for the Children, Machias, for Annastasia C., Loki C. and WillowC.
Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), enteredJune 30, 2009 in a proceeding pursuant to Family Court Act article 10. The order, among other things,adjudged that respondent had neglected the subject children and placed subject children in the custodyof petitioner.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the findings that respondent "permitted the two older children to attend school daily both dirtyand inappropriately dressed and did not administer [the older child's] medication in accordance with thedirection by his doctor" and as modified the order is affirmed without costs.
Memorandum: Respondent mother appeals from an order adjudging that she neglected three of herchildren. The finding of neglect is based in part on a finding by Family Court that the mother "failed totake appropriate action to protect the children from their father" when she was told that one of the threechildren was abused by the father (see Matter of Annastasia C. [Ronnie C.], 78 AD3d 1578[2010] [decided herewith]). We reject the mother's contention that the out-of-court statements of oneof the children were not sufficiently corroborated to establish that the father had abused that child(see Family Ct Act § 1046 [a] [vi]; Matter of Colberdee C., 2 AD3d 1316 [2003]; Matter of Addie F., 22 AD3d 986,987 [2005]). Here, the child's out-of-court statements were sufficiently corroborated by, inter alia, thetestimony of an examining physician, who opined that the child's symptoms were consistent with sexualabuse (see Matter of Tristan R., 63AD3d 1075, 1077 [2009]; Colberdee C., 2 AD3d at 1317), as well as by the testimonyof a psychologist, who opined that the child's statements made during a videotaped interview betweenthe child and a caseworker for child protective services were credible (see Matter [*2]of Victoria KK., 233 AD2d 801, 802-803 [1996]). We also rejectthe further contention of the mother that the court erred in admitting the videotaped interview inevidence. The accuracy and authenticity of the videotape was sufficiently established by the testimonyof the caseworker during the fact-finding hearing (see generally Matter of Hirsh v Stern, 74 AD3d 967 [2010]). Thus,contrary to the mother's contention, the evidence is sufficient to support the finding that the motherneglected all three children based on her failure to take appropriate action following the abuse of onechild by the father. That failure "demonstrated a fundamental defect in [her] understanding of the dutiesand obligations of parenthood and created an atmosphere detrimental to the physical, mental andemotional well-being" of the children (Matter of Lynelle W., 177 AD2d 1008, 1009 [1991];see Family Ct Act § 1012 [f] [i]).
Although we conclude that the evidence is sufficient to establish that the mother neglected the threechildren, we agree with the mother that the evidence is insufficient to support the specific findings thatshe neglected the two older children with respect to the manner in which she permitted them to attendschool, both "dirty and inappropriately dressed," and with respect to her alleged failure to administermedication to the oldest child in accordance with the direction of his physician. We therefore modify theorder by vacating those findings. "[A] finding of neglect may be entered where, 'though [being]financially able to do so or offered financial or other reasonable means to do so,' a parent fails toprovide the child[ren] with adequate clothing and basic medical care" (Matter of Jalesa P. [Georgia P.], 75 AD3d730, 732 [2010], quoting Family Ct Act § 1012 [f] [i] [A]). No evidence was presented atthe fact-finding hearing concerning the financial status of the mother and her ability to provide adequateclothing (see id. at 732-733). Similarly, although petitioner presented evidence that theprescription medications for the older child were low or had not been filled in a few months, there wasinsufficient evidence of that child's need for the medication or the appropriate dosage thereof (seeid.). Present—Smith, J.P., Peradotto, Carni, Sconiers and Gorski, JJ.