| Matter of Mia B. (Brandy R.) |
| 2012 NY Slip Op 08228 [100 AD3d 569] |
| November 29, 2012 |
| Appellate Division, First Department |
| In the Matter of Mia B. and Another, Children Alleged to beNeglected. Brandy R., Appellant; Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), forrespondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel),attorney for the children.
Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about April 25,2012, which, after a fact-finding determination that respondent mother had neglected one of herchildren by inflicting excessive corporal punishment and derivatively neglected the other child,placed the children with petitioner Administration for Children's Services, and, inter alia,continued suspension of her visitation with the children, unanimously affirmed, without costs.
The findings of neglect were supported by a preponderance of the evidence (seeFamily Ct Act § 1046 [b] [i]; Matter of Tammie Z., 66 NY2d 1, 3 [1985]). Therecord shows that respondent neglected the older child by inflicting excessive corporalpunishment upon her (see Family Ct Act § 1012 [f] [i] [B]; see also e.g. Matter of Joseph C. [AnthonyC.], 88 AD3d 478, 479 [1st Dept 2011]), as evidenced by the hospital records and oralreport transmittals documenting the 22-month-old infant's extensive bruising on the legs,buttocks, elbow, and lumbar area, all of which were in various stages of healing. Respondent'ssister testified that after observing the bruises, she confronted respondent, who stated, "[T]heseare my kids and I raise them the way I want. If they act up[,] I'm going to hit them." Under thisscenario, the court properly inferred that respondent had implicitly admitted to causing theinjuries, and her failure to testify and otherwise explain the statement permitted the court to drawthe strongest possible negative inference against her (see Matter of Eugene L. [Julianna H.], 83 AD3d 490 [1st Dept2011]; Matter of Kazmir K., 63AD3d 522, 523 [1st Dept 2009]). The Family Court was in the best position to observe andassess witness demeanor, and its credibility determinations are entitled to deference (see Matter of Jared S. [Monet S.], 78AD3d 536 [1st Dept 2010], lv denied 16 NY3d 705 [2011]) and are supported by therecord herein. Moreover, a [*2]derivative finding as to theyounger child was appropriate, as respondent's infliction of excessive corporal punishment on a22-month-old "demonstrated such an impaired level of parental judgment as to create asubstantial risk of harm for any child in [her] care" (see Matter of Joshua R., 47 AD3d 465, 466 [1st Dept 2008], lvdenied 11 NY3d 703 [2008]).
The court was well within its discretion to disbelieve respondent's subsequent explanation tothe agency's caseworker that she had not been present in the home for three days leading up to theolder child's most recent injuries, and that her mother was the children's primary caretaker and,thus, the likely culprit. The caseworker further testified that respondent admitted that she knew ofthe grandmother's history of child mistreatment and claimed that the grandmother had not takenher medication for bipolar disorder for the previous month. Thus, assuming the veracity ofrespondent's claims, she had to have known or should have known about the neglect, since thevarious stages of healing of the child's injuries indicated neglect over a prolonged period of time,yet she failed to act as a reasonably prudent parent to protect the children (see e.g. Matter ofRayshawn R., 309 AD2d 681, 682 [1st Dept 2003]; Matter of Eric J., 223 AD2d 412,413 [1st Dept 1996]).
In addition, respondent's argument that the court should not have granted her application toproceed pro se at the fact-finding and dispositional hearings is without merit, since the recordshows that the court conducted a searching inquiry to assure that she knowingly, intelligently,and voluntarily waived her right to counsel (see Matter of Jetter v Jetter, 43 AD3d 821, 822 [2d Dept 2007]).There is nothing in the record indicating that she was not competent to make such a decision (see Matter of Emma L., 35 AD3d250, 252 [1st Dept 2006], lv dismissed and denied 8 NY3d 904 [2007]).
We further find that the court's suspension of respondent's supervised visitation wasappropriate, given her refusal to undergo a mental health evaluation and other services, as well asher erratic behavior, including an attempt to take the children from the foster mother at her lastscheduled visit (see e.g. Matter ofCheyenne S., 11 AD3d 362 [1st Dept 2004]).
We have considered respondent's remaining contentions and find them unavailing.Concur—Andrias, J.P., Friedman, DeGrasse, Román and Gische, JJ.