IN RE: D.F. (2024)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (Ronna H. Gordon–Galchus, J.), entered on or about June 14, 2023, which, to the extent appealed from as limited by the briefs, determined, after a hearing, that respondent mother neglected the subject child, unanimously affirmed, without costs.

A preponderance of the evidence supports the finding that the mother neglected the child by inflicting excessive corporal punishment (see Family Ct Act §§ 1012[f][i][B], 1046[b][i]).  The child's in-court testimony established that the mother routinely struck the child with a belt, a broom, and her hands, causing the child to become sad and afraid (see Matter of Ibraheem K. [Jacqueline N.], 190 A.D.3d 643, 644, 136 N.Y.S.3d 884 [1st Dept. 2021]).  The child testified to specific incidents of physical abuse, including a detailed description of an incident, when because the child was unable to stop crying the mother struck the child to the top of the child's head with a handful of keys, causing the child pain and distress.  This account was corroborated by the child's statements to Emergency Children's Services workers who responded on the day of the incident and statements made by the child to an ACS caseworker during an interview the following day (see Matter of Fendi B. [Jason B.], 142 A.D.3d 878, 37 N.Y.S.3d 538 [1st Dept. 2016]).

The child's “sworn testimony at the fact-finding hearing is competent evidence of abuse, and the absence of physical injury or other corroboration does not require a different result” (see Matter of Christina G. [Vladimir G.], 100 A.D.3d 454, 454, 957 N.Y.S.2d 1 [1st Dept. 2012] [internal citation omitted]).  The record contains no evidence that these physical punishments were in any way a justified or a reasonable form of discipline (see Matter of Peter G., 6 A.D.3d 201, 206, 774 N.Y.S.2d 686 [1st Dept. 2004], appeal dismissed 3 N.Y.3d 655, 782 N.Y.S.2d 693, 816 N.E.2d 566 [2004], citing Family Ct Act § 1012[f][i][B];  Matter of Desiree D. [Iris D.], 209 A.D.3d 547, 548, 176 N.Y.S.3d 42 [1st Dept. 2022]).  The court providently credited the child's testimony and found the mother's testimony incredible and self-serving.  There is no basis for disturbing the court's credibility determinations, which are entitled to great deference on appeal (see Matter of Any G. v. Ayman H., 208 A.D.3d 1097, 1098, 175 N.Y.S.3d 25 [1st Dept. 2022]).

The mother did not preserve any argument that ACS failed to conform the pleadings to the proof, and we decline to review this claim in the interest of justice (see Matter of C.F. [Carlos F.], 220 A.D.3d 506, 507, 197 N.Y.S.3d 508 [1st Dept. 2023], lv denied 41 N.Y.3d 901, 2024 WL 629778 [2024]).  Similarly, the mother did not preserve any claim that the court improperly considered inadmissible hearsay statements from a caseworker's testimony.  The parties agreed to redact portions of testimony containing either hearsay or information irrelevant to the fact-finding, and the court expressly stated that those excerpts were not considered, and the caseworker's testimony was given limited weight overall (see Benavides v. City of New York, 115 A.D.3d 518, 519, 982 N.Y.S.2d 85 [1st Dept. 2014]).

We have considered the mother's remaining arguments and find them unavailing.