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IN RE: GABRIEL J., and Another, Children Under Eighteen Years of Age, etc., O'Neill H., et al., Respondents–Appellants, Administration for Children's Services, Petitioner–Respondent.

Decided: October 16, 2012

GONZALEZ, P.J., SWEENY, ACOSTA, RENWICK, MANZANET–DANIELS, JJ. Law Offices of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for O'Neil H., appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for Dainee A., appellant. Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.

Order of fact-finding, Family Court, Bronx County (Jane Pearl, J.), entered on or about September 15, 2011, which, following a fact-finding hearing, determined that respondents-appellants had neglected the subject children, unanimously affirmed, without costs.

The findings of neglect were supported by a preponderance of the evidence showing that respondent boyfriend had inflicted excessive corporal punishment on the children (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i] ), and that respondent mother knew or should have known about the abuse but failed to take any steps to protect her children (see Matter of Rayshawn R., 309 A.D.2d 681, 682, 765 N.Y.S.2d 872 [1st Dept 2003]; Matter of Alena O., 220 A.D.2d 358, 362, 633 N.Y.S.2d 127 [1st Dept 1995] ). The children's out-of-court statements that the mother's boyfriend, among other things, kicked the youngest child in the groin area, leaving a bruise, were corroborated by medical records and the mother's testimony that she observed the bruise the day after the incident (see Family Ct Act § 1046[a][vi]; Matter of Naomi J. [Damon R.], 84 A.D.3d 594, 923 N.Y.S.2d 467 [1st Dept 2011]; Matter of Charnel T., 49 A.D.3d 427, 853 N.Y.S.2d 346 [1st Dept 2008] ). The court was entitled to draw the strongest possible inference the opposing evidence permits against the boyfriend due to his failure to testify (see Matter of Eugene L. [Julianna H.], 83 A.D.3d 490, 921 N.Y.S.2d 61 [1st Dept 2011] ). Further, there is no basis for disturbing the court's evaluation of the evidence, including its credibility determinations (see Matter of Ilene M., 19 A.D.3d 106, 106, 796 N.Y.S.2d 87 [1st Dept 2005] ).

We have considered respondents-appellants' remaining arguments and find them unavailing.