| Matter of David H. (Octavia P.) |
| 2015 NY Slip Op 03360 [127 AD3d 1084] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of David H. Administration for Children'sServices, Respondent; Octavia P., Appellant. (Proceeding No. 1.) In the Matter ofDavone H. Administration for Children's Services, Respondent; Octavia P., Appellant.(Proceeding No. 2.) In the Matter of Davona H. Administration for Children's Services,Respondent; Octavia P., Appellant. (Proceeding No. 3.) In the Matter of Davia H.Administration for Children's Services, Respondent; Octavia P., Appellant. (ProceedingNo. 4.) |
Steven P. Forbes, Jamaica, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Julie Steiner of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Susan Clement ofcounsel), attorney for the children.
Appeal from an order of fact-finding of the Family Court, Kings County (Ann E.O'Shea, J.), dated June 6, 2014. The order, upon a decision of that court dated June 5,2014, made after a hearing, found that the mother neglected the children Davone H. andDavona H., and derivatively neglected the children David H. and Davia H.
Ordered that on the Court's own motion, the mother's notice of appeal from adecision of the same court dated June 5, 2014, is deemed a premature notice of appealfrom the order (see CPLR 5520 [c]); and it is further,
Ordered that the order of fact-finding is affirmed, without costs ordisbursements.
[*2] In the instant childprotective proceeding, the petitioner alleged that the mother neglected the childrenDavone H. and Davona H., and, by subsequent amendment, that the mother derivativelyneglected the children David H. and Davia H. After a fact-finding hearing, the FamilyCourt found that the mother neglected Davone H. and Davona H. by inflicting excessivecorporal punishment on them and by failing to supply them with adequate food, and thatshe derivatively neglected the children David H. and Davia H.
In a child protective proceeding, the petitioner has the burden of proving neglect by apreponderance of the evidence (see Family Ct Act § 1046 [b] [i]).To satisfy this standard, the petitioner may rely upon prior out-of-court statements of thesubject children, provided that they are properly corroborated (see Family Ct Act§ 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112, 117-118 [1987];Matter of Jada K.E. [RichardD.E.], 96 AD3d 744 [2012]; Matter of Tristan R., 63 AD3d 1075, 1076 [2009]). Suchout-of-court statements "may be corroborated by '[a]ny other evidence tending to support'their reliability" (Matter of Nicole V., 71 NY2d at 118, quoting Family Ct Act§ 1046 [a] [vi]).
Contrary to the mother's contention, the Family Court's finding that she neglectedDavone and Davona by inflicting excessive corporal punishment on them (seeFamily Ct Act § 1012 [f] [i] [B]) is supported by a preponderance ofthe evidence. Davone's and Davona's out-of-court statements that their mother, on morethan one occasion, struck them with her fist and other objects such as an electric cord,wire hangers, and a broomstick were corroborated by caseworkers' personal observationsof injuries sustained by one of the children, medical records documenting that child'sinjuries, and their own cross-corroborating statements (see Matter of Arique D. [ElizabethA.], 111 AD3d 625 [2013]; Matter of Iouke H. [Terrence H.], 94 AD3d 889, 891[2012]).
The Family Court's further finding that Davone and Davona were neglected as aresult of the mother's failure to exercise a minimum degree of care in supplying themwith adequate food (Family Ct Act § 1012 [f] [i] [A]) is also supported by apreponderance of the evidence. Davone's and Davona's out-of-court statements, in thisrespect, cross-corroborated each other and were further corroborated by a caseworker'spersonal observation of the lack of food in the household (see Matter of Arique D.[Elizabeth A.], 111 AD3d at 627).
Lastly, since the evidence of neglect as to Davone and Davona demonstrated such animpaired level of parental judgment as to create a substantial risk of harm for otherchildren in the mother's care, the Family Court properly found that the children Davidand Davia were derivatively neglected (see Family Ct Act § 1046[a] [i]; Matter of Janiyah T.[Lateek C.], 82 AD3d 1108, 1109 [2011]; Matter of Tylasia B. [Wayne B.], 72 AD3d 1074 [2010]).Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.