| Matter of James S. (Kathleen S.) |
| 2011 NY Slip Op 07645 [88 AD3d 1006] |
| October 25, 2011 |
| Appellate Division, Second Department |
| In the Matter of James S. Administration for Children's Services,Respondent; Kathleen S., Appellant. (Proceeding No. 1.) In the Matter of Nicholas R.W.Administration for Children's Services, Respondent; Kathleen S., Appellant. (Proceeding No.2.) |
—[*1]
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow ofcounsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel),Attorney for the Children.
In two related child protective proceedings pursuant to Family Court Act article 10, themother appeals from an order of fact-finding of the Family Court, Richmond County (Wolff, J.),dated October 22, 2010, which, after a hearing, found that she had neglected the child James S.and derivatively neglected the child Nicholas R.W.
Ordered that the order of fact-finding is affirmed, without costs or disbursements.
Contrary to the mother's contention, the Family Court's finding of neglect as to the childJames S., based on her use of excessive corporal punishment, is supported by a preponderance ofthe evidence (see Family Ct Act § 1012 [f] [i] [B]; § 1046 [b] [i]). Thatchild's out-of-court statement regarding the use of corporal punishment by the mother wassufficiently corroborated by a caseworker's observation of the injury (see Matter of Isaiah S., 63 AD3d948, 949 [2009]; Matter of DerekJ., 56 AD3d 558, 558-559 [2008]; Matter of Joshua B., 28 AD3d 759, 760-761 [2006]). Thatevidence, together with a negative inference drawn from the mother's failure to testify, wassufficient to support the Family Court's finding of neglect as to James S. (see Matter of Maria Daniella R. [MariaA.], 84 AD3d 1384 [2011]; Matter of Charlie S. [Rong S.], 82 AD3d 1248 [2011]; Matter of Imman H., 49 AD3d 879[2008]). Furthermore, since the mother's conduct toward James S. demonstrated a fundamentaldefect in her understanding of parental duties relating to the care of children, there was sufficientevidence from which to make a finding of derivative neglect as to the child Nicholas R.W.(see Family Ct Act § 1046 [a] [i]; see also Matter of Devontay M., 56 AD3d 561 [2008]; Matter of Nicholas L., 50 AD3d1141 [2008]).[*2]
In addition to the single incident of use of excessivecorporal punishment, which is sufficient to sustain a finding of neglect (see Matter of Alexander J.S. [DavidS.], 72 AD3d 829, 830 [2010]; Matter of Rachel H., 60 AD3d 1060, 1061 [2009]), the FamilyCourt's finding that the mother had previously engaged in a pattern of erratic conduct thatdemonstrated her inability to provide the children with proper supervision or guardianship issupported by a preponderance of the evidence (see Matter of Ashanti R., 66 AD3d 1031, 1032 [2009]; Matter of Lester M., 44 AD3d 944,945 [2007]). Angiolillo, J.P., Dickerson, Chambers and Lott, JJ., concur.