IN RE: MALIK M. (Anonymous). (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from (1) an order of fact-finding of the Family Court, Queens County (Elenor Reid–Cherry, J.), dated December 22, 2023, and (2) an amended order of fact-finding of the same court dated February 29, 2024.  The amended order of fact-finding, insofar as appealed from, after a fact-finding hearing, upon a finding that the respondent Gary H. sexually abused the child Jamyah M., found that the mother neglected the children Jamyah M. and Malik M., and derivatively neglected the children Clarity H.M. and Kira M. H.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the amended order of-fact-finding;  and it is further,

ORDERED that the amended order of fact-finding is affirmed insofar as appealed from, without costs or disbursements.

The Administration for Children's Services (hereinafter ACS) commenced these related proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected the subject children by failing to provide proper supervision or guardianship “by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof” (id. § 1012[f][1][b]).  ACS alleged, among other things, that the mother was aware that the respondent Gary H., the biological father of two of the children, had sexually abused the child Jamyah M. and that the mother failed to protect that child;  that the mother knew that Gary H. was inflicting excessive corporal punishment on Jamyah M. and the child Malik M., yet the mother failed to take any steps to protect those children;  and that the mother was aware that the children knew of repeated domestic violence against her by Gary H., yet allowed him to return to her home several times.  In an amended order of fact-finding dated February 29, 2024, the Family Court, after a fact-finding hearing, found, inter alia, that Gary H. sexually abused Jamyah M., that the mother neglected Jamyah M. and Malik M., and that the mother derivatively neglected the children Clarity H.M. and Kira M.H. The mother appeals.

“In a child neglect proceeding pursuant to Family Court Act article 10, the petitioner must establish by a preponderance of the evidence that the subject child is neglected” (Matter of Shayla G. [Lakisha C.], 233 A.D.3d 682, 684, 222 N.Y.S.3d 157;  see Family Ct Act § 1046[b][i];  Matter of Andrew M. [Brenda M.], 225 A.D.3d 764, 765, 207 N.Y.S.3d 580).  “ ‘To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ ” (Matter of Shayla G. [Lakisha C.], 233 A.D.3d at 684, 222 N.Y.S.3d 157 [internal quotation marks omitted], quoting Matter of Veronica M. [Ana M.], 229 A.D.3d 626, 627, 216 N.Y.S.3d 10;  see Matter of Andrew M. [Brenda M.], 225 A.D.3d at 765, 207 N.Y.S.3d 580;  Matter of Chloe P.-M. [Martinique P.], 220 A.D.3d 783, 784, 197 N.Y.S.3d 333).

“A parent has neglected his or her child where that parent ․, by willful omission, fail[s] to protect the child and as a consequence places the child in imminent danger of sexual abuse” (Matter of Patricia B., 61 A.D.3d 861, 862, 877 N.Y.S.2d 219 [internal quotation marks omitted];  see Matter of Sama A. [Safaa S.], 224 A.D.3d 677, 679, 205 N.Y.S.3d 159;  Matter of Jose E. [Jose M.], 176 A.D.3d 1201, 1203, 109 N.Y.S.3d 672).  Moreover, “neglect might be found where a record establishes that ․ the mother acknowledged that the children knew of repeated domestic violence by her paramour and had reason to be afraid of him, yet nonetheless allowed him several times to return to her home, and lacked awareness of any impact of the violence on the children” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 371, 787 N.Y.S.2d 196, 820 N.E.2d 840;  see Matter of Bronx S. [Denzel J.], 217 A.D.3d 956, 957, 192 N.Y.S.3d 167;  Matter of Christopher D.B. [Lorraine H.], 157 A.D.3d 944, 948, 69 N.Y.S.3d 719).  Further, “[a]lthough parents 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 Veronica M. [Ana M.], 229 A.D.3d at 627, 216 N.Y.S.3d 10;  see Matter of Sama A. [Safaa S.], 224 A.D.3d at 679, 205 N.Y.S.3d 159;  Matter of Raveena B. [Khrisend R.], 209 A.D.3d 640, 641, 175 N.Y.S.3d 340).  “Proof that a respondent neglected one child is admissible on the issue of neglect of any other child of the respondent” (Matter of Veronica M. [Ana M.], 229 A.D.3d at 627, 216 N.Y.S.3d 10;  see Family Ct Act § 1046[a][i]).

“ ‘In a child protective proceeding, a child's prior out-of-court statements relating to the alleged neglect may serve as the basis for a finding of neglect provided that these hearsay statements are corroborated, so as to ensure their reliability’ ” (Matter of Veronica M. [Ana M.], 229 A.D.3d at 628, 216 N.Y.S.3d 10 [internal quotation marks omitted], quoting Matter of David B. [Stacy T.], 171 A.D.3d 1041, 1042, 98 N.Y.S.3d 643;  see Matter of Tazya B. [Curtis B.], 180 A.D.3d 1039, 1040, 120 N.Y.S.3d 79;  Matter of Alexis S. [Edward S.], 115 A.D.3d 866, 866, 982 N.Y.S.2d 366).  “The rule requiring corroboration is flexible, and any other evidence tending to support the reliability of the child's statements may be sufficient corroboration” (Matter of Veronica M. [Ana M.], 229 A.D.3d at 628, 216 N.Y.S.3d 10;  see Matter of David B. [Stacy T.], 171 A.D.3d at 1042, 98 N.Y.S.3d 643;  Matter of Alexis S. [Edward S.], 115 A.D.3d at 866, 982 N.Y.S.2d 366).  “Validation testimony from an expert that the child's psychological and behavioral characteristics lead the expert to conclude that the child was sexually abused may supply the corroboration of the child's out-of-court statements necessary to make out a prima facie case of sexual abuse” (Matter of Alexis S. [Edward S.], 115 A.D.3d at 867, 982 N.Y.S.2d 366;  see Matter of Zamir F. [Ricardo B.], 193 A.D.3d 932, 933, 147 N.Y.S.3d 104;  Matter of Tazya B. [Curtis B.], 180 A.D.3d at 1040, 120 N.Y.S.3d 79).  “The Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated” (Matter of Zamir F. [Ricardo B.], 193 A.D.3d at 933, 147 N.Y.S.3d 104 [internal quotation marks omitted];  see Matter of Tazya B. [Curtis B.], 180 A.D.3d at 1040, 120 N.Y.S.3d 79;  Matter of Alexis S. [Edward S.], 115 A.D.3d at 867, 982 N.Y.S.2d 366).  “ ‘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 Shayla G. [Lakisha C.], 233 A.D.3d at 684, 222 N.Y.S.3d 157 [internal quotation marks omitted], quoting Matter of Ashlyn M. [Robert J.], 228 A.D.3d 939, 941, 214 N.Y.S.3d 138;  see Matter of Alexis S. [Edward S.], 115 A.D.3d at 867, 982 N.Y.S.2d 366).

Here, the testimony of ACS's validating expert witness (see Matter of Alexis S. [Edward S.], 115 A.D.3d at 866, 982 N.Y.S.2d 366;  Matter of Emani W. [Owana E.], 107 A.D.3d 815, 816, 966 N.Y.S.2d 527) provided sufficient corroboration of Jamyah M.’s numerous and consistent out-of-court statements regarding Gary H.’s sexual abuse of her.  Those statements, together with the testimony of ACS's caseworker, established by a preponderance of the evidence that Gary H. sexually abused Jamyah M. (see Family Ct Act § 1046[a][vi];  Matter of Zamir F. [Ricardo B.], 193 A.D.3d at 933, 147 N.Y.S.3d 104;  Matter of Tazya B. [Curtis B.], 180 A.D.3d at 1040, 120 N.Y.S.3d 79).

Moreover, the Family Court properly found that the mother neglected Jamyah M. based on inadequate supervision or guardianship.  The testimony of ACS's expert, along with the testimony of ACS's caseworker, established that, after Jamyah M. reported to the mother that she was sexually abused by Gary H., the mother told Jamyah M. that she would call the police but did not do so and allowed Gary H. to continue residing in the home with Jamyah M. As such, the mother failed to protect Jamyah M. and placed Jamyah M. at substantial risk of harm (see Matter of Sama A. [Safaa S.], 224 A.D.3d at 679, 205 N.Y.S.3d 159;  Matter of Jose E. [Jose M.], 176 A.D.3d at 1203, 109 N.Y.S.3d 672;  Matter of Patricia B., 61 A.D.3d at 862, 877 N.Y.S.2d 219).

The Family Court also properly found that ACS established by a preponderance of the evidence that the mother neglected Jamyah M. and Malik M. by failing to provide them with proper supervision or guardianship and that, as a result, Jamyah M.’s and Malik M.’s physical, mental, or emotional conditions were impaired or were in imminent danger of becoming impaired by the acts of domestic violence perpetrated in their presence (see Nicholson v. Scoppetta, 3 N.Y.3d at 371, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Bronx S. [Denzel J.], 217 A.D.3d at 957, 192 N.Y.S.3d 167).  Contrary to the mother's contention, her status as a victim of domestic violence did not preclude a finding of neglect against her (see Nicholson v. Scoppetta, 3 N.Y.3d at 371, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Bronx S. [Denzel J.], 217 A.D.3d at 957, 192 N.Y.S.3d 167;  see e.g. Matter of Christopher D.B. [Lorraine H.], 157 A.D.3d at 948, 69 N.Y.S.3d 719;  Matter of Angelique L., 42 A.D.3d 569, 572, 840 N.Y.S.2d 811).  The record established that the mother acknowledged that Jamyah M. and Malik M. knew of repeated domestic violence by Gary H. as well as the mother's former boyfriend against her and had reason to be afraid of them, yet the mother nonetheless allowed the men to return to her home several times and lacked awareness of any impact of the violence on those children (see Nicholson v. Scoppetta, 3 N.Y.3d at 371, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Bronx S. [Denzel J.], 217 A.D.3d at 957, 192 N.Y.S.3d 167;  Matter of Christopher D.B. [Lorraine H.], 157 A.D.3d at 948, 69 N.Y.S.3d 719).

Further, ACS established by a preponderance of the evidence that the mother neglected Jamyah M. and Malik M. in that she knew that Gary H. was inflicting excessive corporal punishment on those children, yet she failed to take any steps to protect those children (see Matter of Z'naya D.J. [Vanessa J.], 141 A.D.3d 652, 654, 34 N.Y.S.3d 621;  Matter of Ishaq B. [Lea B.], 121 A.D.3d 889, 890, 994 N.Y.S.2d 405;  Matter of Iouke H. [Terrence H.], 94 A.D.3d 889, 891, 941 N.Y.S.2d 851).

Furthermore, the mother's neglect of Jamyah M. and Malik M. envinced a flawed understanding of her duties as a person legally responsible for a child and impaired judgment sufficient to support a finding of derivative neglect as to Clarity H.M. and Kira M.H. (see Matter of Shayla G. [Lakisha C.], 233 A.D.3d at 682, 222 N.Y.S.3d 157;  Matter of Iouke H. [Terrence H.], 94 A.D.3d at 891, 941 N.Y.S.2d 851;  Matter of Alanna S. [Regina A.], 92 A.D.3d 787, 788, 939 N.Y.S.2d 476).

CONNOLLY, J.P., GENOVESI, DOWLING and LOVE, JJ., concur.