Opinion
2021-04472 Docket Nos. NN-02602-20, NN-02605-20, NN-02609-20, NN-02610-20
07-20-2022
In the MATTER OF MARILIZ G. (Anonymous). Suffolk County Department of Social Services, respondent; v. Jamie G. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Iliana Y.L. (Anonymous). Suffolk County Department of Social Services, respondent; v. Jamie G. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Valentina P. (Anonymous). Suffolk County Department of Social Services, respondent; v. Jamie G. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Yesenia P. (Anonymous). Suffolk County Department of Social Services, respondent; v. Jamie G. (Anonymous), appellant. (Proceeding No. 4)
Michael J. Miller, Miller Place, NY, for appellant. Dennis M. Cohen, County Attorney, Central Islip, NY (Jayne M. St. James of counsel), for respondent. Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the children.
Michael J. Miller, Miller Place, NY, for appellant.
Dennis M. Cohen, County Attorney, Central Islip, NY (Jayne M. St. James of counsel), for respondent.
Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the children.
BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, BARRY E. WARHIT, JJ.
DECISION & ORDER
In four related child protective proceedings pursuant to Family Court Act article 10, Jamie G. appeals from an order of fact-finding of the Family Court, Suffolk County (Caren Loguercio, J.), dated May 21, 2021. The order of fact-finding, after a fact-finding hearing, found that Jamie G. neglected the subject children.
ORDERED that the order is affirmed, without costs or disbursements.
The Suffolk County Department of Social Services (hereinafter the DSS) commenced these proceedings pursuant to Family Court Act article 10. Following a fact-finding hearing, the Family Court, in an order dated May 21, 2021, found that Jamie G. neglected the subject children.
In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act § 1046[b] ; Matter of Sage H. [Lovette H.], 204 A.D.3d 795, 164 N.Y.S.3d 460 ; Matter of Elisa V. [Hung V.], 159 A.D.3d 827, 828, 71 N.Y.S.3d 626 ). A neglected child is a child "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent or other person legally responsible ... to exercise a minimum degree of care ... in providing [a] child with proper supervision [and] guardianship" ( Family Ct Act § 1012[f][i][B] ; see Matter of Sage H. [Lovette H.], 204 A.D.3d 795, 164 N.Y.S.3d 460 ). "It is well settled that a child's experience of domestic violence can cause these harms or put a child in imminent danger of them" ( Matter of Silveris P. [Meuris P.], 198 A.D.3d 787, 789, 156 N.Y.S.3d 281 ). "Even a single act of domestic violence[ ] either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding" ( Matter of Nina P. [Giga P.], 180 A.D.3d 1047, 1047, 118 N.Y.S.3d 247 ). Furthermore, " ‘[a]lthough parents [and persons legally responsible] 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 Je'laya J. [Tracey S.], 192 A.D.3d 1032, 1033, 144 N.Y.S.3d 215, quoting Matter of Elisa V. [Hung V.], 159 A.D.3d at 828, 71 N.Y.S.3d 626 ).
"In neglect proceedings, ‘[u]nsworn out-of-court statements of the [children] may be received and, if properly corroborated, will support a finding of abuse or neglect’ " ( Matter of Silveris P. [Meuris P.], 198 A.D.3d at 789, 156 N.Y.S.3d 281, quoting Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). Family Court Act § 1046(a)(vi) "states a broad flexible rule providing that out-of-court statements may be corroborated by [a]ny other evidence tending to support their reliability" ( Matter of Nicole V., 71 N.Y.2d at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [internal quotation marks omitted]). "Family Court Judges presented with the issue have considerable discretion to decide whether [a] child's out-of-court statements describing incidents of abuse or neglect have, in fact[ ] been reliably corroborated" ( id. at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). "The out-of-court statements of siblings may cross-corroborate one another where they independently describe similar incidents of neglect" ( Matter of Alven V. [Ketly M.], 194 A.D.3d 725, 726, 143 N.Y.S.3d 577 ). Moreover, the Family Court may disregard a child's recantation of a prior allegation if the court determines that the recantation is not credible (see Matter of Tarahji N. [Bryan N.-Divequa C.], 197 A.D.3d 1317, 1319, 153 N.Y.S.3d 598 ; Matter of Luis N.P. [Alquiber R.], 127 A.D.3d 1201, 1202, 8 N.Y.S.3d 381 ). " ‘Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor’ " ( Matter of Je'laya J. [Tracey S.], 192 A.D.3d at 1033, 144 N.Y.S.3d 215, quoting Matter of Emmanuel E. [Debra C.], 187 A.D.3d 1014, 1014, 131 N.Y.S.3d 189 ).
Here, the Family Court properly determined that the DSS established by a preponderance of the evidence that Jamie G. neglected the children by inflicting excessive corporal punishment on them (see Matter of Je'laya J. [Tracey S.], 192 A.D.3d at 1033, 144 N.Y.S.3d 215 ; Matter of Luis N.P. [Alquiber R.], 127 A.D.3d at 1202, 8 N.Y.S.3d 381 ) and by committing domestic violence in the presence of the children (see Matter of Silveris P. [Meuris P.], 198 A.D.3d at 789, 156 N.Y.S.3d 281 ; Matter of Na‘ima W. [Kenyatta W.], 192 A.D.3d 1127, 1128, 141 N.Y.S.3d 348 ). Contrary to Jamie G.’s contention, the out-of-court statements by the children were sufficiently corroborated by each other and by the observations of the caseworker (see Matter of Alven V. [Ketly M.], 194 A.D.3d at 727, 143 N.Y.S.3d 577 ; Matter of Antonio T. [Franklin T.], 169 A.D.3d 699, 701, 93 N.Y.S.3d 369 ). There is no basis for disturbing the court's credibility determinations, which are entitled to deference (see Matter of Luis N.P. [Alquiber R.], 127 A.D.3d at 1202, 8 N.Y.S.3d 381 ).
Furthermore, Jamie G.’s contention that his right to due process was violated is without merit (see Matter of Rosengarten v. New York State Off. of Children & Family Servs., 202 A.D.3d 639, 640, 162 N.Y.S.3d 376 ; cf. Citibank, N.A. v. Kerszko, 203 A.D.3d 42, 56, 161 N.Y.S.3d 232 ).
BARROS, J.P., MALTESE, WOOTEN and WARHIT, JJ., concur.