IN RE: WINTER D. (Anonymous). (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the father appeals from an order of fact-finding of the Family Court, Kings County (Jessica Sin, J.), dated July 12, 2024.  The order of fact-finding, after a fact-finding hearing, found that the father neglected the subject child.

ORDERED that the order of fact-finding is affirmed, without costs or disbursements.

In July 2023, the Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the father neglected the subject child by failing to provide the child with proper supervision or guardianship “by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof,” in that the father inflicted excessive corporal punishment on the child.  In an order of fact-finding dated July 12, 2024, after a fact-finding hearing, the Family Court found that the father neglected the child.  The father 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 [internal quotation marks omitted];  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];  see Family Ct Act § 1012[f][i][B];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840).

“Although 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 626, 627, 216 N.Y.S.3d 10 [internal quotation marks omitted];  see Matter of Malik M. [Taishona M.], 236 A.D.3d 1034, 1036, 229 N.Y.S.3d 234).  “Even a single incident of excessive corporal punishment may suffice to sustain a finding of neglect” (Matter of Joshua T. [Kenisha T.], 196 A.D.3d 491, 492, 146 N.Y.S.3d 848;  see Matter of Moshae L. [Angela J.], 237 A.D.3d 821, 823, 230 N.Y.S.3d 399).  In neglect proceedings, “[u]nsworn out-of-court statements of the [child] may be received and, if properly corroborated, will support a finding of abuse or neglect” (Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914;  see Matter of Mariliz G. [Jamie G.], 207 A.D.3d 627, 629, 170 N.Y.S.3d 505).  The child's statements may be corroborated by “[a]ny other evidence tending to support” their reliability (Family Ct Act § 1046[a][vi];  see Matter of Nicole V., 71 N.Y.2d at 118, 524 N.Y.S.2d 19, 518 N.E.2d 914;  Matter of Mariliz G. [Jamie G.], 207 A.D.3d at 629, 170 N.Y.S.3d 505).  “The observation of bruises or injuries on a child can corroborate a child's out-of-court statements” (Matter of Joshua B., 28 A.D.3d 759, 761, 814 N.Y.S.2d 210;  see Family Ct Act § 1046[a][ii], [vi]).  “In article 10 proceedings, the Family Court has considerable discretion to decide whether the child's out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse” or neglect (Matter of Janiyah S. [Pedro H.], 226 A.D.3d 909, 911, 210 N.Y.S.3d 186 [internal quotation marks omitted];  see Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914).  Moreover, “[w]here the Family Court is primarily confronted with issues of credibility, its factual findings should be accorded considerable deference on appeal” (Matter of Janiyah S. [Pedro H.], 226 A.D.3d at 911, 210 N.Y.S.3d 186;  see Matter of Shayla G. [Lakisha C.], 233 A.D.3d at 684, 222 N.Y.S.3d 157).

Here, the Family Court properly determined that ACS established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporal punishment on her (see Matter of Mariliz G. [Jamie G.], 207 A.D.3d at 629, 170 N.Y.S.3d 505).  Deferring to the court's credibility findings, which are supported by the record, the evidence at the fact-finding hearing established that the father hit the child with a boot, leaving a mark on the child's right arm that was visible to an ACS caseworker (see Matter of Moshae L. [Angela J.], 237 A.D.3d at 823–824, 230 N.Y.S.3d 399;  Matter of Nathaniel I.G. [Marilyn A.P.], 227 A.D.3d 806, 807, 210 N.Y.S.3d 486;  Matter of Sahyir F. [Jalessa F.], 212 A.D.3d 808, 810, 181 N.Y.S.3d 660).  Contrary to the father's contention, the child's out-of-court statements were sufficiently corroborated by the observations of the ACS caseworker (see Matter of Zaria P. [Sade G.], 240 A.D.3d 699, 701, 235 N.Y.S.3d 458;  Matter of Sahyir F. [Jalessa F.], 212 A.D.3d at 810, 181 N.Y.S.3d 660;  Matter of Mariliz G. [Jamie G.], 207 A.D.3d at 629, 170 N.Y.S.3d 505).

CHAMBERS, J.P., WOOTEN, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.