| Matter of Luis N.P. (Alquiber R.) |
| 2015 NY Slip Op 03539 [127 AD3d 1201] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Luis N.P. Administration for Children'sServices, Respondent; Alquiber R., Sr., Appellant, et al., Respondent. (Proceeding No.1.) In the Matter of Alquiber L.R. Administration for Children's Services, Respondent;Alquiber R., Sr., Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter ofJoshua J.P. Administration for Children's Services, Respondent; Alquiber R., Sr.,Appellant, et al., Respondent. (Proceeding No. 3.) |
Richard Cardinale, Brooklyn, N.Y., for respondent-appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Michael S. Legge of counsel), for petitioner-respondent.
Brian O'Halloran, Staten Island, N.Y., attorney for the children.
Appeals from (1) an order of fact-finding of the Family Court, Richmond County(Karen B. Wolff, J.), dated October 4, 2013, and (2) an order of disposition of that courtdated March 18, 2014. The order of fact-finding, insofar as appealed from, after ahearing, found that Alquiber R., Sr., neglected the subject children Luis N.P. and Joshua J.P., and derivatively neglected the subject child Alquiber L.R. Theorder of disposition, among other things, placed the subject children in the custody of theCommissioner of Social Services of the City of New York.
Ordered that the appeal from the order of fact-finding is dismissed, without costs ordisbursements, as the order of fact-finding was superseded by the order of dispositionand is brought up for review on the appeal from the order of disposition; and it isfurther,
[*2] Ordered that the order ofdisposition is affirmed, without costs or disbursements.
"At a fact-finding hearing in a neglect proceeding pursuant to Family Court Actarticle 10, a petitioner has the burden of proving by a preponderance of the evidence thatthe subject child was neglected" (Matter of Negus T. [Fayme B.], 123 AD3d 836, 836[2014]; see Family Ct Act § 1046 [b] [i]; Matter of Jacob P. [Sasha R.],107 AD3d 719 [2013]). "Although parents have a right to use reasonable physicalforce against a child in order to maintain discipline or to promote the child's welfare, theuse of excessive corporal punishment constitutes neglect" (Matter of Cheryale B. [MichelleB.], 121 AD3d 976, 977 [2014]; see Matter of Laequise P. [Brian C.], 119 AD3d 801, 802[2014]; Matter of Matthew M.[Fatima M.], 109 AD3d 472 [2013]).
In a child protective proceeding, unsworn out-of-court statements of the subject childmay be received and, if properly corroborated, will support a finding of abuse or neglect(see Matter of Nicole V., 71 NY2d 112, 117-118 [1987]; Matter of Mateo S. [Robin MarieY.], 118 AD3d 891, 892 [2014]). The Family Court has considerable discretionin deciding whether a child's out-of-court statement has been reliably corroborated andwhether the record as a whole supports a finding of neglect (see Matter of NicoleV., 71 NY2d at 119; Matterof Iouke H. [Terrence H.], 94 AD3d 889, 890-891 [2012]; Matter of Alexander M. [BenjaminM.], 88 AD3d 794, 795 [2011]; Matter of Joshua B., 28 AD3d 759 [2006]). Moreover,where the Family Court is primarily confronted with issues of credibility, its factualfindings must be accorded considerable deference on appeal (see Matter of CheryaleB. [Michelle B.], 121 AD3d at 977; Matter of Mateo S. [Robin Marie Y.],118 AD3d at 893; Matter ofJada K.E. [Richard D.E.], 96 AD3d 744 [2012]).
Here, a preponderance of the evidence supported the Family Court's finding thatAlquiber R., Sr., neglected the children Luis N.P. and Joshua J.P. by inflicting excessive corporal punishment on them (see Matter of Ishaq B. [LeaB.], 121 AD3d 889 [2014]; Matter of Jenna U. [Derrick U.], 108 AD3d 725 [2013];Matter of Iouke H. [Terrence H.], 94 AD3d at 890-891). Contrary to Alquiber R.,Sr.'s, contention, the out-of-court statements by the children Luis N.P. and Joshua J.P. were sufficiently corroborated by the testimony of a caseworkerwith the Administration for Children's Services and their cross-corroborating statements(see Matter of Mateo S. [Robin Marie Y.], 118 AD3d at 893; Matter of Nurridin B. [LouisJ.], 116 AD3d 770, 771 [2014]; Matter of Arique D. [Elizabeth A.], 111 AD3d 625, 627[2013]; Matter of Iouke H. [Terrence H.], 94 AD3d at 890-891; Matter of Maria Daniella R. [MariaA.], 84 AD3d 1384, 1385 [2011]). Evidence that Joshua J.P. may have recanted some of his prior allegations does not mandate that the finding beset aside (see Matter of CharlieS. [Rong S.], 82 AD3d 1248 [2011]; Matter of Tristan R., 63 AD3d 1075, 1077 [2009]; Matter of Shavar B., 7 AD3d619 [2004]). Although Alquiber R., Sr., and the mother of the subject childrendisputed the allegations, the Family Court's determination that they lacked credibility isentitled to deference and is fully supported by the record (see Matter of Sarah W. [BarbaraG.F.], 122 AD3d 931 [2014]; Matter of Cheryale B. [Michelle B.], 121AD3d at 977).
Finally, the evidence which established that Alquiber R., Sr., engaged in a pattern ofusing excessive force to discipline the subject children was sufficient to support theFamily Court's determination that Alquiber L.R. was derivatively neglected (see Matter of Matthew M. [Fatima M.], 109 AD3d 472[2013]; Matter of Jacob P.[Sasha R.], 107 AD3d 719 [2013]; Matter of Amerriah S. [Kadiatou Y.], 100 AD3d 1006[2012]). Hall, J.P., Sgroi, Miller and Hinds-Radix, JJ., concur.