| Matter of Arique D. (Elizabeth A.) |
| 2013 NY Slip Op 07173 [111 AD3d 625] |
| November 6, 2013 |
| Appellate Division, Second Department |
| In the Matter of Arique D. Administration for Children'sServices, Respondent; Elizabeth A., Appellant, et al., Respondent. (Proceeding No. 1.) Inthe Matter of Joseph D. Administration for Children's Services, Respondent; ElizabethA., Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter of Elizavetha V.Administration for Children's Services, Respondent; Elizabeth A., Appellant, et al.,Respondent. (Proceeding No. 3.) In the Matter of Jason D. Administration for Children'sServices, Respondent; Elizabeth A., Appellant, et al., Respondent. (Proceeding No. 4.) Inthe Matter of Benjamin D. Administration for Children's Services, Respondent; ElizabethA., Appellant, et al., Respondent. (Proceeding No. 5.) In the Matter of Aalyah V.Administration for Children's Services, Respondent; Elizabeth A., Appellant, et al.,Respondent. (Proceeding No. 6.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Dona B. Morris of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Adira J. Hulower ofcounsel), attorney for the children.
In six related neglect proceedings pursuant to Family Court Act article 10, the motherappeals, as limited by her brief, from so much of an order of fact-finding and dispositionof the Family Court, Richmond County (Wolff, J.), dated June 4, 2012, as, afterfact-finding and dispositional hearings, found that she neglected the children Arique D.,Benjamin D., Joseph D., and Jason D., and derivatively neglected the children ElizavethaV. and Aalyah V., and placed the children in the custody of the Commissioner of SocialServices of the City of New York until the next permanency hearing.
Ordered that the appeal from so much of the order of fact-finding and disposition asplaced the children in the custody of the Commissioner of Social Services of the City ofNew York until the next permanency hearing, and so much of the order of fact-findingand disposition as relates to Arique D. and Benjamin D. are dismissed as academic,without costs or disbursements; and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as reviewed,without costs or disbursements.
The appeal from so much of the order of fact-finding and disposition as placed thechildren in the custody of the Commissioner of Social Services of the City of New Yorkuntil the next permanency hearing must be dismissed as academic, as that portion of theorder has already expired (seeMatter of Amiya S. [Twana J.F.], 100 AD3d 763, 764 [2012]; Matter of Sylvia J., 23 AD3d560, 561 [2005]; Matter of Ciara M., 273 AD2d 312, 314 [2000]). Since thechildren Arique D. and Benjamin D. are now over 18 years of age, they are no longersubject to the order appealed from (see Matter of Angelina L.C. [Michael C.—PatriciaH.-C.], 110 AD3d 793 [2d Dept 2013]; Matter of Hershko v Hershko, 103 AD3d 635 [2013]; Matter of Julian B. vWilliams, 97 AD3d 670, 671 [2012]). Accordingly, the appeal from so much ofthe order of fact-finding and disposition as related to them must be dismissed asacademic as well.
Family Court Act § 1012 (f) (i) defines a "neglected child" as a child less than18 years of age whose physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired as a result of the failure of his or her parent orother person legally responsible for his or her care to exercise a minimum degree of carein, inter alia, "supplying the child with adequate food . . . though financiallyable to do so or offered financial or other reasonable means to do so" (Family Ct Act§ 1012 [f] [i] [A]), or "in providing the child with proper supervision orguardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantialrisk thereof, including the infliction of excessive corporal punishment . . .or by any other acts of a similarly serious nature requiring the aid of the court" (FamilyCt Act § 1012 [f] [i] [B]).
In a child protective proceeding, "[u]nsworn out-of-court statements of the [subjectchild] may be received and, if properly corroborated, will support a finding of abuse orneglect" (Matter of Nicole V., 71 NY2d 112, 117-118 [1987]; see FamilyCt Act § 1046 [a] [vi]; Matter of Anthony S. [Dawn N.], 98 AD3d 519, 520[2012]).
Here, the out-of-court statements of siblings Jason and Joseph to the caseworker thatthey were struck on more than one occasion by the mother and/or the father werecorroborated (see Family Ct Act § 1046 [a] [vi]), inter alia, by thecaseworker's personal observation of an injury sustained by one of the children and bythe confirmation given by the siblings Benjamin, Arique, and Elizavetha (see Matter of Iouke H. [TerrenceH.], 94 AD3d 889, 891 [2012]), as well as by their own cross-corroboratingstatements (see Matter of Nicole V., 71 NY2d at 118; Matter of Maria Daniella R. [MariaA.], 84 AD3d 1384, 1385 [2011]; Matter of Joshua B., 28 AD3d 759, 761 [2006]). Further,the Family [*2]Court properly took judicial notice of theprior neglect adjudications against the mother and the father based on the use ofexcessive corporal punishment (see Family Ct Act § 1046 [a] [i]).Moreover, the Family Court's determination that the father lacked credibility when hetestified that he never hit the children is entitled to deference (see Matter of Isaiah S., 63AD3d 948, 949 [2009]).
In addition to the finding of excessive corporal punishment, the record likewisesupports the finding that Jason and Joseph were neglected as a result of the mother'sfailure to exercise a minimum degree of care in supplying them with adequate food(Family Ct Act § 1012 [f] [i] [A]), and in providing Jason with proper supervisionor guardianship (Family Ct Act § 1012 [f] [i] [B]). The record also supports thefinding that Elizavetha and Aalyah were derivatively neglected.
The mother's remaining contentions are without merit. Skelos, J.P., Dickerson, Halland Miller, JJ., concur.