| Matter of Jayden B. (Erica R.) |
| 2012 NY Slip Op 00620 [91 AD3d 1344] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Jayden B. and Another, Infants. Oswego CountyDepartment of Social Services, Appellant; Erica R., Respondent. |
[*1]Appeal from an order of the Family Court, Oswego County (Kimberly M. Seager, J.), enteredMarch 24, 2011 in a proceeding pursuant to Family Court Act article 10. The order dismissed thepetition.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the petition is granted, and the matter is remitted to Family Court, Oswego County,for further proceedings in accordance with the following memorandum: We conclude that FamilyCourt erred in determining that petitioner failed to prove by a preponderance of the evidence thatthe children who are the subject of this proceeding are neglected children based upon, inter alia,domestic violence between respondent and the mother of the children and in therefore dismissingthe petition herein (see Family Ct Act 1046 [a]). We note at the outset that the respectiveAttorneys for the Children did not take an appeal from the order, and thus to the extent that theirbriefs raise contentions not raised by petitioner, they have not been considered (see Matter ofSharyn PP. v Richard QQ., 83 AD3d 1140, 1143-1144 [2011]).
Upon our review of the record, we conclude that petitioner established by apreponderance of the evidence that the children were in imminent danger of emotionalimpairment based upon the alleged incidents of domestic violence between the children's motherand respondent (see Family Ct Act 1012 [f] [i] [B]; Matter of Afton C. [James C.], 17 NY3d 1,8-9 [2011]). We note that, in connection with her admission in the separate neglect proceedingbrought against her, the mother admitted that she and respondent "had several disagreements andarguments . . . in the presence of the children and [that] sometimes [the children] were afraid."Respondent failed to appear at the instant fact-finding hearing, and thus we draw the "strongestinference [against her] that the opposing evidence permits" based upon her failure to testify at thehearing (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; seeMatter of Kennedie M. [Kimberly M.], 89 AD3d 1544, 1545 [2011]).
According to the evidence presented at the fact-finding hearing, when the policeresponded to the residence on a specified date, both the mother and respondent admitted that theyhad been engaged in a loud argument in the living room, during which they struck each other.The police officer observed a[*2] scratch on the mother's neck, which the mother admitted shereceived while she and respondent were "fighting." The police officer further observed that theone-year-old child (younger child) was crying in a bedroom, and he described the child as "shookup" and "scared." We conclude that the younger child's proximity to the physical and verbalfighting that occurred in the living room, together with the evidence of a pattern of ongoingdomestic violence in the home, placed him in imminent risk of emotional harm (see KennedieM., 89 AD3d at 1545; cf. Matter of Larry O., 13 AD3d 633 [2004]).
Although the hearing court's determinations are entitled to great deference (see generallyMatter of Syira W. [Latasha B.], 78 AD3d 1552, 1553 [2010]), we conclude that the court'sdetermination that the statements of the five-year-old child (older child) were not corroborated isnot supported by a sound and substantial basis in the record. "Corroboration, for purposes ofarticle 10 proceedings, is defined to mean '[a]ny other evidence tending to support the reliabilityof the previous statements' " of the child (Matter of Christina F., 74 NY2d 532, 536 [1989]), andhere we conclude that the older child's statements were sufficiently corroborated.
The caseworker for Child Protective Services testified at the fact-finding hearing that thebody language of the older child changed when he spoke about his mother and respondent, andthat he refused to talk to her while he was at his mother's house. While at his father's house,however, the older child explained to the caseworker that he did not want to speak with her at hismother's house because his mother repeatedly entered and then left the room. He told thecaseworker that his mother and respondent fought often; that respondent had locked them out ofthe house; and that he was afraid of respondent. He demonstrated with the use of two "Barbie"dolls a physical fight that involved hair-pulling and pushing, which ended with the interventionof a male doll, who represented a police officer. Furthermore, the evidence at the fact-findinghearing established that the police responded to the home of respondent and the mother onseveral occasions for reports of domestic violence. A neighbor testified that she heard loudfighting between respondent and the mother on a weekly basis and that she observed the policeresponding to those fights at least once per month. The neighbor further testified that she hadseen that the mother had been locked out of the house [*3]by respondent on more than one occasion.The child care provider for the children testified that the older child told her on several occasionsthat respondent hurt his mother, and the child care provider in fact observed a large bruise on themother's face. When she questioned the mother about the bruise, the mother explained that it hadhappened in a bar, but after his mother left the house the older child told the child care providerthat "[respondent] did it." We therefore further conclude that the ongoing pattern of domesticviolence also placed the older child in imminent risk of emotional harm, thus compelling theconclusion that both children are neglected based upon the actions of respondent (see KennedieM., 89 AD3d at 1545). We thus reverse the order, grant the petition, and remit the matter toFamily Court for a dispositional hearing. Present Scudder, P.J., Smith, Sconiers, Gorski andMartoche, JJ.