Opinion
672-, 672A Dkt. Nos. N-30754/19, N-30755/19, N-30756/19, NN-08548/20 Case No. 2022-01691
10-03-2023
In the MATTER OF C'D., K.J. and Others, Children Under Eighteen Years of Age, etc., Kamesha D.L. et al., Respondents-Appellants, v. Commissioner of the Administration for Children's Services of the City of New York, Petitioner-Respondent.
Steven N. Feinman, White Plains, for Kamesha D.L., appellant. Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for Craig P., appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child C'D K.J. Andrew J. Baer, New York, attorney for the children C J.P. III, A'D J.P. and K A.L.
Steven N. Feinman, White Plains, for Kamesha D.L., appellant.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for Craig P., appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child C'D K.J.
Andrew J. Baer, New York, attorney for the children C J.P. III, A'D J.P. and K A.L.
Kern, J.P., Moulton, Mendez, Higgitt, O'Neill Levy, JJ.
Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about March 30, 2022, to the extent it brings up for a review a fact-finding order, same court and Justice, entered on or about March 10, 2022, which found that respondents, the mother, and the father, neglected the three older subject children and derivatively neglected the youngest subject child, unanimously affirmed, without costs. Appeals from the fact-finding order, unanimously dismissed, without costs, as subsumed in the appeals from the order of disposition.
The findings of neglect against the mother and the father were supported by a preponderance of the evidence ( Family Ct Act § 1046[b][i] ). There is no basis to disturb the court's credibility determinations (see Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept. 2010], lv denied 16 N.Y.3d 705, 2011 WL 589734 [2011] ). The credible evidence established that the mother and the father took no steps to protect C. and A'D. after being informed that the children's older brother, C'D., may have been touching them inappropriately (see Family Ct Act § 1012[f][i][B] ; Matter of Saaphire A.W. [Lakesha B.], 204 A.D.3d 488, 488, 166 N.Y.S.3d 627 [1st Dept. 2022] ). The evidence shows the mother and the father continued to let C'D. sleep with C. and A'D. in the same bedroom, despite having discussed the implementation of a safety plan for the children with the police. C.’s and A'D.’s out-of-court statements to the ACS caseworker were sufficient to support the findings, as their statements were cross-corroborative (see Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; Matter of Genesis F. [Xiomaris S.], 121 A.D.3d 526, 526, 994 N.Y.S.2d 341 [1st Dept. 2014] ).
The court's finding that the mother had neglected A'D. by intentionally burning her face with a cigarette for "making noise" was also supported by a preponderance of the credible evidence (see Matter of Chance R. [Andre W.], 168 A.D.3d 554, 555, 92 N.Y.S.3d 239 [1st Dept. 2019] ; Matter of Anthony C., 201 A.D.2d 342, 342–343, 607 N.Y.S.2d 324 [1st Dept. 1994] ).
The foregoing findings of neglect warranted the finding of derivative neglect as to the youngest child, K. (see Family Ct Act § 1046[a][i] ; Matter of Samiyah H. [Sammie H.], 187 A.D.3d 540, 540, 133 N.Y.S.3d 19 [1st Dept. 2020] ). The prior neglect and permanent neglect findings entered against the mother with respect to C'D. and an older sibling provided an additional basis for a derivative neglect finding against the mother, given that the mother has not ameliorated the conditions that led to those findings as of this proceeding (see Matter of Cheron B. [Vanessa G.], 157 A.D.3d 618, 67 N.Y.S.3d 457 [1st Dept. 2018] ; Matter of Baby Girl L. [Mark Dunald B.], 147 A.D.3d 683, 684, 48 N.Y.S.3d 127 [1st Dept. 2017] ).