Opinion
10-03-2017
In re ANTONIO S. and Others, Dependent Children Under the Age of Eighteen Years, etc., Antonio S., Sr., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Kathy C. Park of counsel), for respondent. Kenneth M. Tuccillo, Hastings on Hudson, attorney for the children.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Kathy C. Park of counsel), for respondent.
Kenneth M. Tuccillo, Hastings on Hudson, attorney for the children.
FRIEDMAN, J.P., MANZANET–DANIELS, KAPNICK, KERN, SINGH, JJ.
Order, Family Court, Bronx County (Robert Hettleman, J.), entered on or about June 10, 2016, which, to the extent appealed from as limited by the briefs, after a combined fact-finding and Family Ct. Act § 1028 hearing, determined that respondent father neglected the children Antonio S. and Jordan S., and derivatively neglected Jayden B., unanimously affirmed, without costs.
A preponderance of the evidence supports the Family Court's finding that the father neglected Antonio and Jordan by failing to provide proper supervision, failing to provide sufficient food, and inflicting excessive corporal punishment on them (see Family Ct. Act § 1012[f][i][A],[B] ; see Matter of Alex R. [Maria R.], 81 A.D.3d 463, 915 N.Y.S.2d 568 [1st Dept.2011] ; Matter of Lah De W. [Takisha W.], 78 A.D.3d 523, 911 N.Y.S.2d 327 [1st Dept.2010] ). The caseworker testified that both Antonio and Jordan told her that their father left them alone for extended periods, did not provide adequate food, and hit them with a belt or his hand when they did not clean or refused to panhandle, so that they were afraid of him. The children's out-of-court statements were properly admitted into evidence because they cross-corroborated each other, and were partly corroborated by the mother's testimony that she found them left alone in the father's residence, without food, and had seen the father slap Antonio and seen marks on Antonio's body (see Family Ct. Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 123–124, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987] ; Matter of Nephra P.I. [Shanel N.], 139 A.D.3d 485, 29 N.Y.S.3d 804 [1st Dept.2016], lv. denied 27 N.Y.3d 912, 39 N.Y.S.3d 380, 62 N.E.3d 120 [2016] ; Matter of Jayden R. [Jacqueline C.], 134 A.D.3d 638, 23 N.Y.S.3d 170 [1st Dept.2015] ). The children's statements were sufficient to support a finding of excessive corporal punishment, beyond what was reasonable to discipline the children (see Matter of Alex R. [Maria R.], 81 A.D.3d at 463, 915 N.Y.S.2d 568 ). The Family Court properly drew a negative inference from the father's failure to testify (Matter of Nicole H., 12 A.D.3d 182, 783 N.Y.S.2d 575 [1st Dept.2004] ), and providently exercised its discretion in denying the father's application to compel the children to testify.
The evidence of the father's neglect of the older children demonstrates such an impaired level of parental judgment as to create a substantial risk of harm to any child in his care, thus supporting the finding that he derivatively neglected the youngest child (see Matter of Jayden R. [Jacqueline C.], supra; Family Court Act § 1046[a][i] ).