| Matter of Jack P. (Joi Q.) |
| 2011 NY Slip Op 00057 [80 AD3d 812] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jack P. and Another, Children Alleged to beNeglected. Ulster County Department of Social Services, Respondent; Joi Q.,Appellant. |
—[*1] Philip M. Cataldi, Ulster County Department of Social Services, Kingston, for respondent. Ted J. Stein, Woodstock, attorney for the child. Veronica M. Kosich, Catskill, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), enteredSeptember 17, 2009, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate respondent's children to be neglected.
Respondent is the mother of Jack P. (born in 2000) and Justin P. (born in 1995). After afact-finding hearing, Family Court determined that she neglected the children by inflictingexcessive corporal punishment. Following a dispositional hearing, temporary custody wasawarded to the nonparty father and judgment against respondent was suspended for one yearupon terms and conditions. The order of disposition, however, was subsequently vacated uponthe consent of all parties. Respondent also consented to an order awarding custody to the father[*2]in a separate proceeding. Respondent now appeals the findingof neglect.[FN*]
Initially, Family Court did not abuse its discretion by denying respondent's motion for asubpoena of Justin's probation records. Respondent sought the subpoena based upon herallegation that Justin had made a statement disavowing his accusations against respondent whilebeing interviewed by the Probation Department. Family Court reviewed the records in camera asspecifically requested by respondent, and determined that they did not contain any statementsmade by either child. Accordingly, we see no reason to disturb Family Court's determination(see People v Figueras, 199 AD2d 409, 410 [1993], lv denied 83 NY2d 804[1994]; Mahoney v Staffa, 168 AD2d 809, 809-810 [1990]).
Nor do we find any basis for disturbing Family Court's decision to proceed on the third dayof this four-day fact-finding hearing when respondent alleged that she was unable to attendbecause of back pain. A litigant does not have an absolute right to be present at all stages of acivil proceeding, including a Family Ct Act article 10 proceeding (see Matter of RobertU., 283 AD2d 689, 690 [2001]). Pursuant to Family Ct Act § 1042, "[i]f the parent orother person legally responsible for the child's care is not present, the court may proceed to hear apetition under this article only if the child is represented by counsel." Here, the children wererepresented by counsel and Family Court subsequently reopened the proceeding to allowrespondent to testify. Given these circumstances, including respondent's prior failure to appearand the record of her disregard for the directives of the court, we find no abuse of discretion (see Matter of Starcy G., 13 AD3d532, 532-533 [2004]; Matter of Andrew MM., 279 AD2d 654, 655-656 [2001]).
Finally, while a parent may use reasonable corporal punishment to promote discipline, thepreponderance of the evidence in this case supports Family Court's conclusion that thepunishment inflicted by respondent was excessive. There was testimony that respondent regularlyslapped, hit and punched the children out of anger, screamed at them, and humiliated them withdisparaging epithets and obscenities, and the children feared her. As an example, Justin, who islegally blind in his right eye as a result of a detached retina, testified to a laundry room incidentwhen respondent slapped him and pushed him, causing the right side of his head to hit the wall.In a rage, she then forced him to the ground and pounded him with her fists. Jack witnessed theincident and testified that it scared him and made his stomach hurt. According Family Court thegreat deference that it is due, given its advantage in viewing the witnesses and assessing theirdemeanor and credibility, we conclude that sufficient evidence in the record supports the findingthat respondent neglected the children (see Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 681[2010]; Matter of Mary Kate VV., 59 AD3d at 875-876; Matter of Omavi A. [Jaimyce A.], 68AD3d 1463, 1464-1465 [2009]; Matter of Aaliyah Q., 55 AD3d 969, [*3]971 [2008]).
Peters, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: To the extent that respondent'sarguments challenge the disposition, they have been rendered moot by Family Court's subsequentvacatur (see Matter of Mary KateVV., 59 AD3d 873, 874 n [2009], lv denied 12 NY3d 711 [2009]). The neglectadjudication, however, was not vacated and is subject to our review, as it is "a permanent andsignificant stigma" that may affect a parent's status in future proceedings (Matter of JamesHH., 234 AD2d 783, 783 [1996], lv denied 89 NY2d 812 [1997] [internal quotationmarks omitted]).