IN RE: DAMIEK TT. and Another (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Schenectady County (Kevin A. Burke, J.), entered March 2, 2023, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

Respondent (hereinafter the father) is the father of the subject children (born in 2014 and 2019).  Petitioner commenced this neglect proceeding in November 2020, alleging that the father had neglected the subject children in numerous respects.  An extensive fact-finding hearing ensued.  Family Court thereafter issued an order in which it found that the father had neglected the older child by subjecting him to excessive corporal punishment and that such behavior constituted derivative neglect of the younger child.¹  The father appeals.

We affirm.  “Neglect is established when a preponderance of the evidence shows that the children's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and that the actual or threatened harm to the children results from the parent's failure to exercise a minimum degree of care in providing the children with proper supervision or guardianship” (Matter of Aiden J. [Armando K.], 197 A.D.3d 798, 798–799, 151 N.Y.S.3d 558 [3d Dept. 2021] [internal quotation marks and citations omitted];  see Family Ct Act §§ 1012[f][i][B];  1046[b][i];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004];  Matter of Caylin T. [Christine T.], 229 A.D.3d 859, 861, 214 N.Y.S.3d 523 [3d Dept. 2024]).  Notably, while out-of-court statements by a child are insufficient to support a finding of neglect by themselves, they will suffice if corroborated by “[a]ny other evidence tending to support [their] reliability” (Family Ct Act § 1046[a][vi]).  There need only be “[a] relatively low degree of corroborative evidence ․ to meet this threshold, and the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed” so long as they are supported by a sound and substantial basis in the record (Matter of Justin CC. [Tina CC.], 77 A.D.3d 1056, 1057, 909 N.Y.S.2d 771 [3d Dept. 2010] [internal citations omitted], lv denied 16 N.Y.3d 702, 2011 WL 135182 [2011];  see Matter of Olivia RR. [Paul RR.], 207 A.D.3d 822, 824, 171 N.Y.S.3d 269 [3d Dept. 2022]).

Here, a caseworker employed by petitioner testified as to how she interviewed several individuals, including the older child, during the course of an investigation in 2020.  During those interviews, the older child told her that the father “smack[ed] him frequently,” including in the face.  The older child showed the caseworker several marks on his face that he claimed were scars from the father striking him, and he further described an incident in which the father hit him in the face so hard that he began bleeding from his nose or lip.  Two other children who spent time with the subject children and the father also spoke to the caseworker and confirmed that they had seen the father strike the older child.  One of those children described an incident in which the father hit the older child's face and arm hard enough to leave red marks;  the other detailed one incident in which the father punched the older child in the face and another in which the father “threw [the older child] into a chair” with sufficient force to break a vase sitting nearby, prompting the paternal grandmother to tell the father not to hit the older child “in the face because he might pass out.”  Beyond those accounts provided to the caseworker, the mother of the younger child testified regarding an incident in which the older child came to her “screaming” and wiping blood off his face with a blanket that the father later told her to get rid of.  She initially testified that she did not see the father draw blood from the older child “in [her] presence” during that incident, but later acknowledged during cross-examination that the father had “popped [the older child] and ․ sensed that he was bleeding.”

The father now argues that the foregoing proof was deficient in various respects but, notwithstanding his contentions, the accounts of others who had witnessed incidents of corporal punishment severe enough to leave marks, break furniture and draw blood were more than adequate to corroborate the older child's out-of-court claims (see Matter of Bonnie FF. [Marie VV.], 220 A.D.3d 1078, 1082, 197 N.Y.S.3d 753 [3d Dept. 2023];  Matter of Stephanie RR. [Pedro RR.], 140 A.D.3d 1237, 1239–1240, 32 N.Y.S.3d 700 [3d Dept. 2016];  Matter of Dylynn V. [Bradley W.], 136 A.D.3d 1160, 1163–1164, 26 N.Y.S.3d 369 [3d Dept. 2016];  Matter of Dylan TT. [Kenneth UU.], 75 A.D.3d 783, 783–784, 905 N.Y.S.2d 345 [3d Dept. 2010]).  Family Court credited that proof over the father's denials in his own testimony and, according deference to that assessment of credibility, we are satisfied that a sound and substantial basis exists in the record for Family Court's determination that the father had neglected the older child by subjecting him to excessive corporal punishment (see Matter of Jakob Z. [Matthew Z.-Mare AA.], 156 A.D.3d 1170, 1171–1172, 66 N.Y.S.3d 744 [3d Dept. 2017];  Matter of Dylynn V. [Bradley W.], 136 A.D.3d at 1163–1164, 26 N.Y.S.3d 369;  Matter of Aaliyah Q., 55 A.D.3d 969, 970–971, 865 N.Y.S.2d 714 [3d Dept. 2008]).

Finally, as the father's behavior toward the older child revealed such an impaired level of parental judgment that any child in his care would be at substantial risk of harm, Family Court properly determined that he had derivatively neglected the younger child (see Matter of Dylynn V. [Bradley W.], 136 A.D.3d at 1164, 26 N.Y.S.3d 369;  Matter of Dylan TT. [Kenneth UU.], 75 A.D.3d at 784, 905 N.Y.S.2d 345).  To the extent that they are not addressed above, the father's remaining contentions have been examined and found to lack merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Although the parties reference other alleged incidents of neglect at length in their briefs, our review of the appealed-from order reflects that Family Court made no findings regarding those allegations and premised the findings of neglect upon the ground that the father had subjected the older child to excessive corporal punishment.  As a result, we limit our discussion to that issue.

Egan Jr., J.

Garry, P.J., Aarons, Lynch and Ceresia, JJ., concur.