IN RE: Oluwashola P. (2012)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Oluwashola P., A Child Under Eighteen Years of Age, etc., Administration for Children's Services, Petitioner–Appellant, Emma T., Respondent–Respondent.

7792

Decided: May 31, 2012

Mazzarelli, J.P., Catterson, DeGrasse, Richter, Manzanet–Daniels, JJ.

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for appellant. Tennille M. Tatum–Evans, New York, for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about November 3, 2011, which dismissed the neglect petition against respondent mother, unanimously reversed, on the facts, without costs, the neglect petition granted, and the matter remanded for a dispositional hearing.

The caseworker testified that the child stated that the mother beat him with a cord on his back when he broke a toy. The child's statements were corroborated by a letter written by the mother to her boyfriend in prison, which stated that she had “just” beaten the child as if it was “judgment day,” for breaking the toy (see In re Christopher L, 19 AD3d 597 [2007] ). The mother's statement that the letter was a “joke,” and her subsequent claim that it was an expression of her feelings, not her actions, is not credible in light of the fact that the letter was entirely consistent with the four-year-old child's account of events. The fact that the caseworker did not see bruises on the child's body a week later is not dispositive. Although deference should be accorded the Family Court's determination regarding the credibility of the witnesses, this Court may properly make a finding of neglect based upon the record (see Matter of Chanyae S [Rena W], 82 AD3d 1247 [2011] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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