Opinion
2012-05-30
In the Matter of YANNI D. (Anonymous). Administration for Children's Services, respondent; Hope J. (Anonymous), appellant. (Proceeding No. 1). In the Matter of Rudolph A.H. (Anonymous). Administration for Children's Services, respondent; Hope J. (Anonymous), appellant. (Proceeding No. 2).
The Virdone Law Firm, P.C., Garden City, N.Y. (John Virdone and Thomas Weiss of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel; Daniel A. Pollak on the brief), for respondent.
The Virdone Law Firm, P.C., Garden City, N.Y. (John Virdone and Thomas Weiss of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel; Daniel A. Pollak on the brief), for respondent.
Richard Giacoma, Jamaica, N.Y., attorney for the child Yanni D.
Steven Banks, New York, N.Y. (Tamara A. Steckler and John A. Newbery of counsel), attorney for the child Rudolph A.H.
In two related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Queens County (Tally, J.), dated August 17, 2011, which, after a hearing, found that she had neglected the child Rudolph A.H. and derivatively neglected the child Yanni D.
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
After a fact-finding hearing under Family Court Act article 10, any determination that a child is abused or neglected must be based on a preponderance of the evidence ( see Family Ct. Act § 1046[b]; Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Dareth O., 304 A.D.2d 667, 668, 758 N.Y.S.2d 372). Neglect may be established by even a single incident of excessive corporal punishment ( see Matter of Padmine M. [ Sandra M.] , 84 A.D.3d 806, 807, 922 N.Y.S.2d 527;Matter of Rachel H., 60 A.D.3d 1060, 876 N.Y.S.2d 463). The Family Court's assessment of the credibility of witnesses is entitled to considerable deference ( see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337;Matter of Sadiq H. [ Karl H.], 81 A.D.3d 647, 915 N.Y.S.2d 867).
Here, contrary to the mother's contention, the Family Court's finding of neglect of the child Rudolph A.H. based on excessive corporal punishment was supported by a preponderance of the evidence ( see Family Ct. Act § 1012[f] [i][B]; Matter of James S. [ Kathleen S.], 88 A.D.3d 1006, 931 N.Y.S.2d 524; Matter of Padmine M. [ Sandra M.] , 84 A.D.3d 806, 922 N.Y.S.2d 527; Matter of Sadiq H., 81 A.D.3d 647, 915 N.Y.S.2d 867; Matter of Isaiah S., 63 A.D.3d 948, 880 N.Y.S.2d 528;Matter of Derek J., 56 A.D.3d 558, 867 N.Y.S.2d 507). The Family Court's finding that the mother engaged in excessive corporal punishment when she initiated an altercation in which she slapped and scratched Rudolph A.H. is supported by the evidence presented at the fact-finding hearing, including testimony of a caseworker and a police officer, and a nurse's report describing the child's injuries.
The evidence also supported the derivative finding of neglect as to the child Yanni D. ( see Matter of James S. [Kathleen S.], 88 A.D.3d 1006, 931 N.Y.S.2d 524; Matter of Isaiah S., 63 A.D.3d at 949, 880 N.Y.S.2d 528;Matter of Jordan W., 59 A.D.3d 558, 872 N.Y.S.2d 287;Matter of Devontay M., 56 A.D.3d 561, 562, 867 N.Y.S.2d 508).