| Matter of Era O. (Emmanuel O.) |
| 2016 NY Slip Op 08525 [145 AD3d 895] |
| December 21, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Era O., Appellant. Administration forChildren's Services, Respondent; Emmanuel O., Respondent. (Proceeding No. 1.) In theMatter of Oscibea O., Also Known as Oseibea O. Administration for Children's Services,Petitioner; Emmanuel O., Respondent. (Proceeding No. 2.) In the Matter of Julius O.Administration for Children's Services, Petitioner; Emmanuel O.,Respondent. |
Anthony DeGuerre, Staten Island, NY, attorney for the child, the appellant EraO.
Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and EmmaGrunberg of counsel), for petitioner-respondent.
Janis A. Parazzelli, Floral Park, NY, for respondent-respondent.
Ronna L. DeLoe, New Rochelle, NY, attorney for the child Julius O.
Appeals by the child Era O. from (1) an order of fact-finding of the Family Court,Richmond County (Arnold Lim, J.), (2) an order of disposition of that court, and (3) anorder of dismissal of that court, all dated May 5, 2015. The order of fact-finding, after ahearing, found that the father neglected the child Oscibea O., also known as Oseibea O.,and derivatively neglected the children Julius O. and Era O. The order of dispositionplaced Julius O. and Era O. in the custody of the Commissioner of Social Services of theCity of New York until the completion of the next permanency hearing. The order ofdismissal dismissed the petition with respect to the child Oscibea O., also known asOseibea O., as the child was over 18 years of age.
Ordered that the appeal from the order of dismissal is dismissed, without costs ordisbursements, as the appellant, the child Era O., is not aggrieved by that order; and it isfurther,
Ordered that the appeal from the order of fact-finding is dismissed, without costs[*2]or disbursements, as that order was superseded by theorder of disposition and is brought up for review on the appeal from the order ofdisposition; and it is further,
Ordered that the appeal from so much of the order of disposition as placed thechildren Julius O. and Era O. in the custody of the Commissioner of Social Services ofthe City of New York until the completion of the next permanency hearing, which was tocommence November 5, 2015, is dismissed as academic, without costs or disbursements;and it is further,
Ordered that the appeal from so much of the order of disposition as brings up forreview the finding that the father derivatively neglected the child Julius O. is dismissed,as the appellant, the child Era O., is not aggrieved by that portion of the order; and it isfurther,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
The appeal from so much of the order of disposition as placed the subject children inthe custody of the Commissioner of Social Services of the City of New York until theconclusion of the next permanency hearing, which was to commence on November 5,2015, must be dismissed as academic, as the period of placement has already expired (see Matter of Dalia G. [FrankB.], 128 AD3d 821, 822 [2015]; Matter of Stephen Daniel A. [Sandra M.], 122 AD3d 834,835 [2014]). The appeal from the order of fact-finding likewise must be dismissed,because the order of fact-finding was superseded by the order of disposition. The issuesraised on the appeal from the order of fact-finding are brought up for review on theappeal from the order of disposition (see Matter of Keishaun P. [Tyrone P.], 140 AD3d 1171,1171-1172 [2016]).
In order to establish neglect of a child, the petitioner must demonstrate, by apreponderance of the evidence, (1) that the child's physical, mental, or emotionalcondition has been impaired or is in imminent danger of becoming impaired, and (2) thatthe actual or threatened harm to the child is a consequence of the failure of the parent orcaretaker to exercise a minimum degree of care in providing the child with propersupervision or guardianship (see Family Ct Act §§ 1012 [f] [i];1046 [b]; Nicholson vScoppetta, 3 NY3d 357, 368 [2004]). Although parents have a right to usereasonable physical force against a child in order to maintain discipline or to promote thechild's welfare, the use of excessive corporal punishment constitutes neglect (seeFamily Ct Act § 1012 [f] [i] [B]; Matter of Nah-Ki B. [Nakia B.], 143 AD3d 703 [2016];Matter of Dalia G. [Frank B.], 128 AD3d at 823; Matter of Matthew M. [FatimaM.], 109 AD3d 472, 473 [2013]; Matter of Delehia J. [Tameka J.], 93 AD3d 668, 669[2012]). Moreover, a single incident of excessive corporal punishment may suffice tosustain a finding of neglect (seeMatter of Nah-Ki B. [Nakia B.], 143 AD3d 703 [2016]; Matter of Dalia G.[Frank B.], 128 AD3d at 823; Matter of Joseph O'D. [Denise O'D.], 102 AD3d 874, 875[2013]; Matter of Yanni D.[Hope J.], 95 AD3d 1313, 1313 [2012]). In proving neglect, the petitioner mayintroduce evidence of the child's prior out-of-court statement relating to the allegedneglect. That evidence may serve as a basis for a finding of neglect as long as thestatement is corroborated to ensure its reliability (see Family Ct Act§ 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112, 118 [1987]; Matter of Alexis S. [EdwardS.], 115 AD3d 866, 866 [2014]). The corroboration requirement is flexible, "andany other evidence tending to support the reliability of the child's statements may besufficient corroboration" (Matter of Nah-Ki B. [Nakia B.], 143 AD3d at 706[internal quotation marks omitted]; see Matter of Nicholas J.R. [Jamie L.R.], 83 AD3d 1490,1490-1491 [2011]; see e.g. Matter of Nicole V., 71 NY2d at 124).
Here, a preponderance of the evidence supports the Family Court's finding that thefather neglected the child Oscibea O., also known as Oseibea O. (hereinafter Oseibea) byinflicting excessive corporal punishment on her. Contrary to the appellant's contention,Oseibea's out-of-court statements were sufficiently corroborated by the testimony of thecaseworker employed by the Administration for Children's Services, as well as by thetestimony of the child Julius O. (see Matter of Hayden C. [Tafari C.], 130 AD3d 924, 925[2015]; Matter of Mateo S.[Robin Marie Y.], 118 AD3d 891, 892 [2014]). Additionally, the court properlyconsidered evidence that the father regularly used marijuana in the home and was notparticipating in a rehabilitative program (see Matter of Ishaq B. [Lea B.], 121 AD3d 889, 889-890[2014]). Moreover, the court properly drew a negative inference from the father's [*3]voluntarily absenting himself from the hearing and nottestifying (see Matter of RickyS. [Lyndell S.], 139 AD3d 959, 961 [2016]).
Finally, the evidence establishing that the father used excessive force to disciplinethe child Oseibea and had regularly used marijuana was sufficient to support the FamilyCourt's determination that the father derivatively neglected Era O. (see Family CtAct § 1046 [a] [i]; Matter of Marchella P. [Loretta B.-B.], 137 AD3d 1286,1289 [2016]; Matter of Ishaq B. [Lea B.], 121 AD3d at 889-890). Eng, P.J.,Balkin, Sgroi and Barros, JJ., concur.