Opinion
2019-10715 N-2029-18
07-07-2021
In the Matter of Joshua T. (Anonymous). Administration for Children's Services, respondent; Kenisha T. (Anonymous), appellant.
Leighton M. Jackson, New York, NY, for appellant. Georgia M. Pestana, Acting Corporation Counsel, New York, NY (Ingrid R. Gustafson and Deborah E. Wassel of counsel; Aaron Cole on the brief), for respondent. Janet E. Sabel, New York, NY (Dawne A. Mitchell and Susan Clement of counsel), attorney for the child.
Leighton M. Jackson, New York, NY, for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York, NY (Ingrid R. Gustafson and Deborah E. Wassel of counsel; Aaron Cole on the brief), for respondent.
Janet E. Sabel, New York, NY (Dawne A. Mitchell and Susan Clement of counsel), attorney for the child.
MARK C. DILLON, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY BETSY BARROS, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding and disposition of the Family Court, Queens County (Joan L. Piccirillo, J.), dated August 26, 2019.. The order of fact-finding and disposition, insofar as appealed from, after a fact-finding hearing, found that the mother neglected the subject child.
ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.
In January 2018, the Administration for Children's Services (hereinafter ACS) commenced this neglect proceeding pursuant to article 10 of the Family Court Act, alleging that the mother of a then 11-year-old child neglected the child by inflicting excessive corporal punishment on him. After a fact-finding hearing, the Family Court, by order of fact-finding and disposition dated, found, inter alia, that the mother had neglected the child. The mother appeals.
Contrary to the mother's contention, the Family Court's finding that the child was neglected was supported by a preponderance of the evidence (see Matter of Era O. [Emmanuel O.], 145 A.D.3d 895, 897; Matter of Rachel H., 60 A.D.3d 1060, 1061). Even a single incident of excessive corporal punishment may suffice to sustain a finding of neglect (see Matter of Era O.[Emmanuel O.], 145 A.D.3d at 897; Matter of Joseph O'D. [Denise O'D.], 102 A.D.3d 874, 875). The child's out-of-court statements were sufficiently corroborated by the testimony of the police officer and the child's medical records (see Matter of Paul M. [Tina H.], 146 A.D.3d 961, 963; Matter of Era O. [Emmanuel O.], 145 A.D.3d at 898). In addition, the court providently exercised its discretion in drawing a negative inference against the mother upon her failure to testify at the hearing (see Matter of Dean J.K. [Joseph D.K.], 121 A.D.3d 896, 897; Matter of Joseph O'D. [Denise O'D.], 102 A.D.3d at 875).
The mother's contention that her due process rights were violated is unpreserved for appellate review (see e.g. Matter of Kishanda S. [Stephan S.], 190 A.D.3d 747, 749; Matter of Damani B. [Theresa M.], 174 A.D.3d 524, 526) and, in any event, without merit.
DILLON, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.
By order to show cause dated September 24, 2019, the parties were directed to show cause before this Court why an order should not be made and entered dismissing the appeal in the above-entitled proceeding on the ground that no appeal lies from an order entered upon the default of the appealing party. By decision and order on motion of this Court dated October 31, 2019, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeal, it is
ORDERED that the motion to dismiss the appeal is denied (see e.g. Matter of N. [Fania D.—Alice T.], 108 A.D.3d 551, 552-553; Matter of Starcy G., 13 A.D.3d 532, 532-533).