| Matter of Joseph O'D. (Denise O'D.) |
| 2013 NY Slip Op 00340 [102 AD3d 874] |
| January 23, 2013 |
| Appellate Division, Second Department |
| In the Matter of Joseph O'D. Orange County Department ofSocial Services, Respondent; Denise O'D., Appellant. (Proceeding No. 1.) In the Matterof James P.Orange County Department of Social Services, Respondent; Denise O'D., Appellant, etal., Respondent. (Proceeding No. 2.) |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y. (Peter R. Schwarz of counsel), forrespondent in proceeding No. 1 and petitioner-respondent in proceeding No. 2. Kelli M. O'Brien, Goshen, N.Y., attorney for the children.
In two related child protective proceedings pursuant to Family Court Act article 10,the mother appeals, as limited by her brief, from so much of an order of fact-finding anddisposition of the Family Court, Orange County (Bivona, J.), entered October 4, 2011,as, after a hearing, found that she had neglected the child Joseph O'D. and derivativelyneglected the child James P.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
After a fact-finding hearing under Family Court Act article 10, any finding that achild is abused or neglected must be based on a preponderance of the evidence (seeFamily Ct Act § 1046 [b]; Matter of Nicole V., 71 NY2d 112, 117[1987]; Matter of Yanni D.[Hope J.], 95 AD3d 1313, 1313 [2012]; Matter of Dareth O., 304 AD2d667, 668 [2003]). Neglect may be established by even a single incident of excessivecorporal punishment (see Matter of Yanni D. [Hope J.], 95 AD3d at 1313; Matter of Padmine M. [SandraM.], 84 AD3d 806, 807 [2011]; Matter of Rachel H., 60 AD3d 1060, 1061 [2009]). TheFamily Court's assessment of the credibility of witnesses is entitled to considerabledeference (see Matter of Irene O., 38 NY2d 776, 777 [1975]; Matter of YanniD. [Hope J.], 95 AD3d at 1313; Matter of Sadiq H. [Karl H.], 81 AD3d 647, 647 [2011]).
Here, contrary to the mother's contention and the position of the attorney for the[*2]children, the Family Court's finding of neglect of thechild Joseph O'D. was supported by a preponderance of the evidence (see FamilyCt Act § 1012 [f] [i] [B]; Matter of James S. [Kathleen S.], 88 AD3d 1006,1006-1007 [2011]; Matter of Padmine M. [Sandra M.], 84 AD3d at 807;Matter of Sadiq H. [Karl H.], 81 AD3d at 647). The child's out-of-courtstatements that his mother hit and scratched him were sufficiently corroborated bytestimony from the child's caseworker and from two police officers, all of whomobserved the child's injuries. Moreover, the nature of the subject child's injuriessupported a finding of excessive corporal punishment (see Matter of Yanni D. [HopeJ.], 95 AD3d at 1314). This evidence, together with the negative inference drawnfrom the mother's failure to testify, was sufficient to support the Family Court's finding(see Matter of Alanah M.[Donnie M.], 96 AD3d 757, 758 [2012]; Matter of Charlie S. [Rong S.], 82 AD3d 1248, 1249[2011]; Matter of ImmanH., 49 AD3d 879, 880 [2008]; Matter of Tajani B., 49 AD3d 876, 876-877 [2008]).
The evidence also supported the finding that the mother derivatively neglected thechild James P. (see Family Ct Act § 1046 [a] [i]; see also Matter of DevontayM., 56 AD3d 561, 562 [2008]; Matter of Nicholas L., 50 AD3d 1141, 1142 [2008]).
Since the father did not appeal from the order, the contention of the attorney for thechildren that the record did not support a finding of neglect against him is not properlybefore this Court. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.