Opinion
07-12-2017
In the Matter of TARELLE J. (Anonymous). Administration for Children's Services, respondent; Walter J. (Anonymous), appellant.
Cheryl Charles–Duval, Brooklyn, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Susan Paulson of counsel), for respondent. Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.
Cheryl Charles–Duval, Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Susan Paulson of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.
JOHN M. LEVENTHAL, J.P., HECTOR D. LaSALLE, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.
Appeal by the father from an order of disposition of the Family Court, Kings County (Daniel Turbow, J.), dated April 8, 2015. The order of disposition, after a hearing, inter alia, placed the father under the supervision of the Administration for Children's Services until October 8, 2015. The appeal brings up for review an order of fact-finding of that court (Michael Ambrosio, J.), dated December 8, 2014, which, after a hearing, found that the father neglected the subject child.
ORDERED that the appeal from so much of the order of disposition as placed the father under the supervision of the Administration for Children's Services until October 8, 2015, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appellant, Walter J. (hereinafter the father), is the father of the subject child, Tarelle J. In June 2014, the Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging that on June 17, 2014, the father neglected the child, who was then almost eight years old, by inflicting excessive corporal punishment on him. After a fact-finding hearing, the Family Court found that the father neglected the child. In an order of disposition, made after a hearing, the court, inter alia, placed the father under the supervision of ACS until October 8, 2015. The father appeals from the order of disposition.
The appeal from so much of the order of disposition as placed the father under the supervision of ACS until October 8, 2015, must be dismissed as academic, as that portion of the order has expired by its own terms (see Matter of Paul M. [Tina H.], 146 A.D.3d 961, 962, 48 N.Y.S.3d 679 ; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 1027, 926 N.Y.S.2d 119 ). However, since an adjudication of neglect constitutes a permanent and significant stigma that might indirectly affect the father's status in future proceedings, the appeal from so much of the order of disposition as brings up for review the finding of neglect is not academic (see Matter of Paul M. [Tina H.], 146 A.D.3d at 962, 48 N.Y.S.3d 679 ; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d at 1027, 926 N.Y.S.2d 119 ).
In a child protective proceeding, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; Matter of Joshua V. [Rahsaan J.], 137 A.D.3d 1153, 28 N.Y.S.3d 97 ; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d at 1027, 926 N.Y.S.2d 119 ). A petitioner may rely upon a child's prior out-of-court statements to satisfy this burden, provided that they are properly corroborated (see Family Ct. Act § 1046[a][vi] ; see also Matter of Paul M. [Tina H.], 146 A.D.3d at 962, 48 N.Y.S.3d 679 ; Matter of Era O. [Emmanuel O.], 145 A.D.3d 895, 897, 43 N.Y.S.3d 475 ). Whether corroborative evidence tends to support the reliability of the out-of-court statements is a determination for the Family Court, which saw and heard the witnesses (see Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 ; Matter of Hayden C. [Tafari C.], 130 A.D.3d 924, 925, 13 N.Y.S.3d 564 ; Matter of Michael B. [Samantha B.], 130 A.D.3d 619, 620, 13 N.Y.S.3d 196 ). "The rule requiring corroboration is flexible, and any other evidence tending to support the reliability of the child's statements may be sufficient corroboration" ( Matter of Christopher L., 19 A.D.3d 597, 597, 797 N.Y.S.2d 535 ; see Matter of Nah–Ki B. [Nakia B.], 143 A.D.3d 703, 706, 38 N.Y.S.3d 593 ).
"Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect" ( Matter of Cheryale B. [Michelle B.], 121 A.D.3d 976, 977, 995 N.Y.S.2d 135 ; see Family Ct. Act § 1012[f][i][B] ; Matter of Paul M. [Tina H.], 146 A.D.3d at 962, 48 N.Y.S.3d 679 ; Matter of Eliora B. [Kennedy B.], 146 A.D.3d 772, 773, 45 N.Y.S.3d 144 ; Matter of Era O. [Emmanuel O.], 145 A.D.3d at 897, 43 N.Y.S.3d 475 ). Even "a single incident of excessive corporal punishment is sufficient to support a finding of neglect" ( Matter of Eliora B. [Kennedy B.], 146 A.D.3d at 773, 45 N.Y.S.3d 144 ; see Matter of Nah–Ki B. [Nakia B.], 143 A.D.3d at 705, 38 N.Y.S.3d 593 ; Matter of Jehozadak B.W. [Shira E.W.], 134 A.D.3d 729, 729, 19 N.Y.S.3d 787 ; Matter of Rachel H., 60 A.D.3d 1060, 1061, 876 N.Y.S.2d 463 ).
Here, contrary to the father's contention, a preponderance of the evidence supported the Family Court's finding that the father neglected the subject child by inflicting excessive corporal punishment (see Matter of Douglas L. [Cheyanne J.], 147 A.D.3d 840, 841, 47 N.Y.S.3d 372 ; Matter of Paul M. [Tina H.], 146 A.D.3d at 963, 48 N.Y.S.3d 679 ; Matter of Isabella D. [David D.], 145 A.D.3d 1003, 1004, 44 N.Y.S.3d 187 ; Matter of Jehozadak B.W. [Shira E.W.], 134 A.D.3d at 729, 19 N.Y.S.3d 787 ; Matter of Amparo B.T. [Carlos B.E.], 118 A.D.3d 809, 811, 987 N.Y.S.2d 199 ; Matter of Rachel H., 60 A.D.3d at 1061, 876 N.Y.S.2d 463 ). The father admitted that on June 17, 2014, he hit the child once with a wooden ruler, and other credible evidence established that the child sustained visible marks and swelling on his left forearm as a result, and that this was not an isolated incident (see Matter of Ashanti R., 66 A.D.3d 1031, 1032, 888 N.Y.S.2d 130 ; Matter of Sheneika V., 20 A.D.3d 541, 542, 800 N.Y.S.2d 424 ). Contrary to the father's contention, there is no basis for disturbing the court's credibility determinations, which are entitled to deference (see Matter of Isabella D. [David D.], 145 A.D.3d at 1004, 44 N.Y.S.3d 187 ; Matter of Hayden C. [Tafari
C.], 130 A.D.3d at 926, 13 N.Y.S.3d 564 ; Matter of Luis N.P. [Alquiber R.], 127 A.D.3d 1201, 1202, 8 N.Y.S.3d 381 ; Matter of Isaiah S., 63 A.D.3d 948, 949, 880 N.Y.S.2d 528 ).