| Matter of Jeremy H. (Logann K.) |
| 2012 NY Slip Op 07866 [100 AD3d 518] |
| November 20, 2012 |
| Appellate Division, First Department |
| In the Matter of Jeremy H. and Others, Children Alleged to beNeglected. Logann K., Appellant; Administration for Children's Services of the City of NewYork, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel),attorney for the child Jeremy H. Lawyers For Children, Inc., New York (Ronnie Dane of counsel), attorney for the childrenJasir H. And Jyeh H.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or aboutDecember 8, 2011, which, following a fact-finding hearing, determined that appellant mother hadneglected Jasir-Keiomura H. and Jeremy H., and derivatively neglected Jyeh-Keiyonce H., andcommitted custody and guardianship of the children to their maternal grandmother, directed themother to submit to a mental health evaluation, and limited her visitation to biweekly supervisedvisits, unanimously affirmed, without costs. Appeal from the fact-finding order, same court andJudge, entered on or about August 16, 2011, unanimously dismissed, without costs, assuperseded by the appeal from the order of disposition.
This Court previously held that the mother derivatively neglected two of her other children,finding that the same evidence that supported the Family Court's findings that the mother hadused inappropriate and excessive corporal punishment against two of the subject children, andderivatively neglected the third subject child, demonstrated by a preponderance of the evidencethat she had neglected those two children as well (Matter of Jacob H. [Logann K.], 94 AD3d 628 [1st Dept 2012],lv dismissed 19 NY3d 952 [2012]). That finding is law of the case (see Kenney v City of New York, 74AD3d 630, 630-631 [1st Dept 2010]).
In any event, considering the merits of the mother's arguments raised on this appeal, weconclude that the findings of neglect and derivative neglect as to the subject children were [*2]supported by a preponderance of the evidence. Such evidenceincluded the testimony of a caseworker that Jeremy stated that the mother hit him in the headwith a closed fist and that he got the "worse" of all the children, and that Jasir told her that themother hit her with a belt, a ruler, and a spoon that felt "like a rock." The caseworker alsoobserved four healing nail marks on one child's arm, and the medical records noted scratches onJasir that were too numerous to have occurred in the normal course. Moreover, the court wasentitled to draw the strongest negative inference from the mother's failure to testify in theproceedings (see Matter of Taylor C.[Christin C.], 89 AD3d 405, 406 [1st Dept 2011]). The out-of-court statements of Jasirand Jeremy to the caseworker were corroborated by the caseworker's testimony, the medicalrecords of Jasir, and the consistent account of those two children (see Matter of KeishaMcL., 261 AD2d 341, 342 [1st Dept 1999]). This evidence also amply supported the court'sfinding of derivative neglect.
The mother asserts that the court improperly limited her visits to biweekly supervised visitsat the agency. The court properly exercised its discretion in limiting the mother's visits where shehad not visited consistently in the past and her mental condition appeared to be deteriorating.
We have considered the mother's other arguments, and find them unavailing.Concur—Tom, J.P., Andrias, Saxe, Acosta and Freedman, JJ.