Opinion
356 CAF 16–00099
03-16-2018
In the MATTER OF RASHAWN J., JR. and Mishawn J. Monroe County Department of Human Services, Petitioner–Respondent; v. Veronica H.-B., Respondent–Appellant, and Rashawn J., Sr., Respondent.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR RESPONDENT–APPELLANT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (PETER A. ESSLEY OF COUNSEL), FOR PETITIONER–RESPONDENT. SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILDREN.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (PETER A. ESSLEY OF COUNSEL), FOR PETITIONER–RESPONDENT.
SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order adjudging that she directly neglected her sons. Family Court also found, in the alternative, that the sons were derivatively neglected based on its conclusion that the mother neglected the sons' half-sister. We conclude that the court's finding of direct neglect by excessive corporal punishment with respect to the older son, as well as the half-sister, which is relevant to the alternative finding of derivative neglect, is supported by a preponderance of the evidence adduced at the fact-finding hearing (see §§ 1012[f][i][B]; 1046[b][i] ).
Contrary to the mother's contention, the half-sister's out-of-court statements that the mother had caused her injuries by striking her with a jump rope were sufficiently corroborated by the observations of the school nurse and caseworkers, photographic evidence of the injuries, and the testimony of petitioner's medical expert who reviewed the photographs (see Matter of Bryan O. [Zabiullah O.] , 153 A.D.3d 1641, 1642, 61 N.Y.S.3d 409 [4th Dept. 2017] ; Matter of Dustin B. [Donald M.] , 71 A.D.3d 1426, 1426–1427, 896 N.Y.S.2d 552 [4th Dept. 2010] ; Matter of Christopher P. , 30 A.D.3d 307, 308, 818 N.Y.S.2d 50 [1st Dept. 2006], lv denied 7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136 [2006] ). In addition, the half-sister's out-of-court statements indicating that the mother inflicted excessive corporal punishment or allowed such harm to be inflicted upon the older son were sufficiently corroborated by the caseworkers' testimony and the photographs of his injuries (see Bryan O. , 153 A.D.3d at 1642, 61 N.Y.S.3d 409 ). Contrary to the mother's further contention, we conclude that the court was entitled to reject the purported exculpatory explanations given to caseworkers and others regarding the older son's injuries (see Matter of Seth G. , 50 A.D.3d 1530, 1531, 856 N.Y.S.2d 778 [4th Dept. 2008] ). Indeed, the court properly drew " ‘the strongest possible negative inference’ against the [mother] after [she] failed to testify at the fact-finding hearing" ( Matter of Kennedie M. [Douglas M.] , 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278 [4th Dept. 2011], lv denied 18 N.Y.3d 808, 2012 WL 539274 [2012] ; see Matter of Brittany W. [Patrick W.] , 103 A.D.3d 1217, 1218, 960 N.Y.S.2d 668 [4th Dept. 2013] ).
The mother further contends that the court's alternative finding of derivative neglect with respect to both sons lacks a sound and substantial basis in the record. We reject that contention. Here, the mother's neglect of the half-sister "is so closely connected with the care of [the sons] as to indicate that the [sons are] equally at risk" ( Matter of Marino S. , 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ; see Matter of Raymond D. , 45 A.D.3d 1415, 1416, 845 N.Y.S.2d 583 [4th Dept. 2007] ; Matter of Steven L. , 28 A.D.3d 1093, 1093, 813 N.Y.S.2d 627 [4th Dept. 2006], lv denied 7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244 [2006] ).
We agree with the mother, however, that the court erred in finding that she neglected the sons by using illegal drugs and engaging in domestic violence in their presence, and by failing to supply them with adequate food, medical care, and education (see Family Ct Act § 1012[f][i][A], [B] ). Those findings of direct neglect are not supported by a preponderance of the evidence admitted at the fact-finding hearing (see § 1046[b][i], [iii]; see Bryan O. , 153 A.D.3d at 1642–1643, 61 N.Y.S.3d 409 ). We therefore modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the findings that respondent Veronica H.-B. neglected the subject children by using illegal drugs and engaging in domestic violence in their presence and by failing to supply adequate food, medical care, and education, and as modified the order is affirmed without costs.