| Matter of Phillips N. (Joy N.) |
| 2013 NY Slip Op 01409 [104 AD3d 690] |
| March 6, 2013 |
| Appellate Division, Second Department |
| In the Matter of Phillips N., Appellant. Administration forChildren's Services, Respondent; Joy N., Respondent, et al., Respondent. (ProceedingNo. 1.) In the Matter of Elizabeth N., Appellant. Administration for Children's Services,Respondent; Chidi N., Respondent, et al., Respondent. (Proceeding No. 2.) In the Matterof Anthony N., Appellant. Administration for Children's Services, Respondent; Chidi N.,Respondent, et al., Respondent. (Proceeding No. 3.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andScott Shorr of counsel), for petitioner-respondent.
In three related child protective proceedings pursuant to Family Court Act article 10,the subject children appeal from an order of disposition of the Family Court, QueensCounty (Arias, J.), dated January 31, 2012, which, after a fact-finding hearing, upon thedenial of that branch of their motion which was to dismiss the petitions against themother pursuant to Family Court Act § 1051 (c) on the ground that the aid of thecourt was not required, upon a finding that the mother had neglected the children, andupon the denial of that branch of their motion which was for a suspended judgmentpursuant to Family Court Act § 1053, inter alia, released them to the custody of themother and the father under the supervision of the Administration for Children'sServices.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The petitioner commenced the instant proceedings against the mother and father,alleging that they had neglected and abused their daughter and had neglected andderivatively abused their two sons. The charges stemmed from an incident in which themother allegedly hit the daughter in the face with a shoe and a hanger, causing visibleinjuries. On consent of all parties, the [*2]Family Courtgranted the father a six-month adjournment in contemplation of dismissal.
After a fact-finding hearing, but before the Family Court entered an order of neglect,the subject children moved to dismiss the petitions against the mother on the ground thatthe aid of the court was not required (see Family Ct Act § 1051 [c]).Alternatively, the children moved for a suspended judgment at disposition (seeFamily Ct Act § 1053). The Family Court denied that branch of the motion whichwas to dismiss the petitions against the mother and, upon a finding that the mother hadneglected the children, denied that branch of the motion which was for a suspendedjudgment and entered a dispositional order, inter alia, releasing the children to the motherand the father under the supervision of the petitioner. The children appeal.
Family Court Act § 1051 (c) provides that a court shall dismiss a petition if (1)"facts sufficient to sustain the petition . . . are not established," or (2) "in acase of alleged neglect, the court concludes that its aid is not required on the recordbefore it" (see Matter of Baby Girl W., 245 AD2d 830 [1997]; Matter ofAngela D., 175 AD2d 244 [1991]). Contrary to the children's contention, the FamilyCourt did not improvidently exercise its discretion in denying that branch of their motionwhich was to dismiss the petitions against the mother on the ground that the aid of thecourt was not required. Despite the mother's successful completion of parental skillstraining and anger management counseling, the court properly found that some type ofsupervision was appropriate, especially since the mother never admitted responsibility forher daughter's injuries (see Matter of Baby Girl W., 245 AD2d 830 [1997]; cf. Matter of Eustace B. [ShondellaM.], 76 AD3d 428 [2010]).
Similarly, the Family Court did not improvidently exercise its discretion in denyingthat branch of the children's motion which was for a suspended judgment at disposition. "'The paramount concern in a dispositional hearing is the best interests of the child. Thefactors to be considered in making the determination include the parent or caretaker'scapacity to properly supervise the child, based on current information and the potentialthreat of future abuse and neglect' " (Matter of Eric Z. [Guang Z.], 100 AD3d 646, 648 [2012],quoting Matter of LemarH., 23 AD3d 383, 384 [2005]). The Family Court's credibility determinationsare entitled to considerable deference, since it had the advantage of seeing and hearingthe witnesses (see Matter ofLannaman v Minus, 96 AD3d 756, 757 [2012]; Matter of Yanni D. [Hope J.],95 AD3d 1313 [2012]). Under the circumstances presented here, particularlyconsidering the mother's failure to admit responsibility, we perceive no basis to disturbthe Family Court's determination that it would not be in the children's best interests toenter a suspended judgment. Mastro, J.P., Austin, Roman and Cohen, JJ., concur.