DWAYNE RESPONDENT APPELLANT v. <<

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

ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER–RESPONDENT; DWAYNE L., RESPONDENT–APPELLANT.

CAF 12–01012

Decided: January 03, 2014

PRESENT:  CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ. DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this proceeding pursuant to Family Court Act article 10, respondent parents appeal, respectively, from orders adjudicating their seven children to be neglected by them.   Contrary to the parents' contentions, Family Court's finding of neglect is supported by the requisite preponderance of the evidence (see Family Ct Act § 1046[b][i] ).   The “child[ren]'s out-of-court statements may form the basis for a finding of neglect as long as they are sufficiently corroborated by other evidence tending to support their reliability” (Matter of Nicholas L., 50 AD3d 1141, 1142;  see § 1046[a] [vi] ).   We agree with the parents that neither the repetition by each child of his or her own account nor the strong inference drawn against the parents for failing to testify can establish corroboration where it otherwise does not exist (see Matter of Iyonte G. [Charles J.R.], 82 AD3d 765, 767).   In this case, however, the out-of-court statements of the three oldest children adequately cross-corroborated one another (see Matter of Nicole V., 71 N.Y.2d 112, 124), and established that the parents engaged in acts of domestic violence in the presence of the children (see Matter of Lindsey BB. [Ruth BB.], 70 AD3d 1205, 1207).   The evidence further established that the parents routinely allowed the oldest child, then 10 years old, to supervise and discipline his six younger siblings in the parents' absence (see Matter of Shayna R., 57 AD3d 262, 262–263;  see also Matter of Donell S. [Donell S.], 72 AD3d 1611, 1612, lv denied 15 NY3d 705;  Matter of Alan B., 267 A.D.2d 306, 307).   The record also supports the court's finding that the parents coerced the children into not being truthful with the persons investigating the allegations against the parents.

We reject the parents' further contention that petitioner failed to establish a causal connection between their conduct and any impairment or risk of impairment to the children (see generally Nicholson v. Scoppetta, 3 NY3d 357, 369).   Viewed as a whole, “the evidence shows that [the oldest girl] suffers from extreme distress, the source of which is her home environment” (Matter of Maria A., 118 A.D.2d 641, 642;  see Matter of Theresa CC., 178 A.D.2d 687, 689), and that the physical, mental or emotional condition of all of the children was in imminent danger of becoming impaired due to the parents' “ ‘pattern of inattention to the child[ren]'s need for a safe environment’ “ (Alan B., 267 A.D.2d at 307).

Frances E. Cafarell

Clerk of the Court