Opinion
6031
03-20-2018
IN RE ISAIAH D., and Another, Children Under Eighteen Years of Age, etc., Mark D., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Law Office of Thomas R. Villeco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for Administration for Children's Services, respondent. Law Office of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), attorney for the child Isaiah D. Andrew J. Baer, New York, attorney for the child Tru L.
Law Office of Thomas R. Villeco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for Administration for Children's Services, respondent.
Law Office of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), attorney for the child Isaiah D.
Andrew J. Baer, New York, attorney for the child Tru L.
Friedman, J.P., Richter, Mazzarelli, Kapnick, Gesmer, JJ.
Order of fact-finding and disposition (one paper) of the Family Court, New York County (Stewart H. Weinstein, J.), entered on or about November 19, 2014, to the extent that it determined that respondent was a person legally responsible for the younger subject child and the father of the older subject child, and that he neglected both children by committing acts of domestic violence upon the mother while in the children's presence and neglected the older child by inflicting excessive corporal punishment upon him, unanimously affirmed, without costs.
A preponderance of the evidence supports the Family Court's determination that respondent neglected the older child by subjecting him to excessive corporal punishment, because the child's out-of-court statement that respondent caused the mark on his back was sufficiently corroborated by the caseworker's testimony that she saw the mark on his back and partly corroborated by the mother's testimony that she saw marks on the child's back after respondent disciplined the child (see Matter of Antonio S. [Antonio S., Sr.], 154 A.D.3d 420, 420, 61 N.Y.S.3d 226 [1st Dept. 2017] ; Matter of Naomi J. [Damon R.], 84 A.D.3d 594, 923 N.Y.S.2d 467 [1st Dept. 2011] ).
In addition, a preponderance of the evidence supports the court's determination that respondent neglected the children by committing acts of domestic violence against the nonrespondent mother while the children were present ( Family Ct. Act §§ 1012[f][i][B], 1046[b][i] ). The mother's testimony that the younger child was present during the April 2013 incident was supported by respondent's testimony (see Matter of Jayline R. [Jose M.], 110 A.D.3d 419, 420, 973 N.Y.S.2d 21 [1st Dept. 2013] ). The older child's out-of-court statement that he had witnessed respondent commit acts of domestic violence against the mother was supported by the mother's testimony that sometimes when respondent was abusing her the child would get him to stop (see Matter of Darren S. [Darren S.], 133 A.D.3d 534, 535, 21 N.Y.S.3d 29 [1st Dept. 2015] ).
Contrary to respondent's contention, the record shows that the children were in danger of becoming emotionally or physically impaired by the domestic violence he was inflicting upon the mother while they were present. The mother's testimony that during the April 2013 incident the younger child was scared, "cried a little bit" and appeared "stunned" is sufficient to demonstrate that her emotional well-being had been impaired by the altercation she had just witnessed (see Matter of Nia J. [Janet Jordan P.], 107 A.D.3d 566, 567, 968 N.Y.S.2d 446 [1st Dept. 2013] ).
In addition, the mother's testimony that the older child was receiving therapy as a result of the domestic abuse he witnessed, and the caseworker's testimony that the child told her that he had an anger problem as a result of the violence he had seen in the home, demonstrate that the child had been impaired or was at imminent risk of emotional or physical impairment (see Matter of Zelda McM. [Patrick L.–O. McM.], 154 A.D.3d 573, 573–574, 62 N.Y.S.3d 349 [1st Dept. 2017] ; Matter of Krystopher D'A. [Amakoe D'A.], 121 A.D.3d 484, 485, 994 N.Y.S.2d 107 [1st Dept. 2014] ). Any inconsistencies with the mother's testimony given at a previous housing hearing raised issues of credibility that were properly resolved by the Family Court (see Matter of Jasmine M., 301 A.D.2d 479, 753 N.Y.S.2d 370 [1st Dept. 2003] ; Matter of Salma M., 294 A.D.2d 198, 199, 744 N.Y.S.2d 3 [1st Dept. 2002] ).
Last, we decline to enter a finding that respondent derivatively neglected the younger child by inflicting excessive corporal punishment upon the older child as requested by that child's counsel because the petitions do not set forth an allegation of derivative neglect.