Matter of Dylynn V. ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 18, 2016 518252
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In the Matter of DYLYNN V. and
Another, Alleged to be
Neglected Children.
SCHUYLER COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
BRADLEY W.,
Appellant.
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Calendar Date: January 11, 2016
Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.
__________
Francisco P. Berry, Ithaca, for appellant.
Kristin E. Hazlitt, Schuyler County Department of Social
Services, Watkins Glen, for respondent.
Daniel J. Fitzsimmons, Watkins Glen, attorney for the
children.
__________
Egan Jr., J.
Appeal from an order of the Family Court of Schuyler County
(Morris, J.), entered December 18, 2013, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 10, to adjudicate the subject
children to be neglected.
In July 2013, petitioner investigated allegations of
neglect made against respondent by his stepson, Dylynn V. (born
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in 1999), wherein Dylynn alleged that respondent physically
abused him, his sister, Deborah V. (born in 2001), and their
mother, to whom respondent then was married. The investigation
was prompted by a telephone call that Dylynn, with the assistance
of his maternal grandfather and the grandfather's wife,1 had made
to the Schuyler County Sheriff's Department and an interview of
the child by a member of the State Police, during the course of
which Dylynn revealed that he and his sister routinely were being
hit by respondent and, further, described a specific incident in
which respondent choked him while restraining him in a headlock
on the floor. Following an investigation, petitioner commenced
this neglect proceeding against respondent and obtained a
temporary order of protection in favor of the children.2 A fact-
finding hearing ensued, at the conclusion of which Family Court
found that respondent had neglected both Dylynn and Deborah and,
further, that respondent had derivatively neglected Deborah.
Following a dispositional hearing, at which it was revealed that
Dylynn, Deborah and their mother had relocated out of state,
Family Court issued an order of protection in favor of the
children, which remained in effect until September 1, 2015. This
appeal by respondent ensued.
We affirm. Preliminarily, although the combined
dispositional order/order of protection expired by its own terms
in September 2015, this appeal from Family Court's fact-finding
order (see Family Ct Act § 1112 [a]) is not moot, as the finding
of neglect and derivative neglect against respondent "may
adversely affect [him] in future matters" (Matter of Kali-Ann E.,
27 AD3d 796, 797 n [2006], lv denied 7 NY3d 704 [2006]).
Additionally, to the extent that respondent's attorney suggested
at oral argument that it was inappropriate for petitioner to
continue to pursue this neglect proceeding against respondent
once he and the children's mother separated, suffice it to say
1
Although the grandfather's wife is a step-grandparent to
the subject children, for purposes of this decision, she will be
referred to as the children's grandmother.
2
Petitioner also apparently filed a neglect petition
against the mother, which thereafter was "settled."
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that we find this argument to be entirely unpersuasive. Simply
put, a parent or other person legally responsible for a child's
care cannot avoid the consequences of his or her prior actions by
subsequently electing to vacate the premises or otherwise sever
ties with the child's remaining parent.
Turning to the merits, "[a] finding of neglect will be
sustained if [the] petitioner demonstrated, by a preponderance of
the evidence, that the child[ren's] physical, mental or emotional
condition was harmed or is in imminent danger of such harm as a
result of the parent's [or caretaker's] failure to exercise [the]
minimum degree of care that a reasonably prudent person would
have used under the circumstances" (Matter of Marcus JJ. [Robin
JJ.], 135 AD3d 1002, ___, 22 NYS3d 661, 662 [2016]; see Matter of
Hailey XX. [Angel XX.], 127 AD3d 1266, 1268 [2015]; Matter of
Alexander G. [Tatiana G.], 93 AD3d 904, 905 [2012]). "Notably, a
finding of neglect does not require actual injury or impairment,
but only an imminent threat that such injury or impairment may
result, which can be established through a single incident or
circumstance" (Matter of Heaven H. [Linda H.], 121 AD3d 1199,
1199 [2014] [internal quotation marks, brackets and citations
omitted]; see Matter of Emmett RR. [Scott RR.], 134 AD3d 1189,
1190-1191 [2015]).
Here, the grandparents, a Schuyler County Sheriff's
Department deputy, a State Trooper and caseworkers from two local
social services agencies testified that Dylynn – and, to a lesser
extent, Deborah – alleged that respondent had physically abused
them. Although some of the statements made by the children –
such as Dylynn's assertion that respondent "punched and hit" them
"all of the time" wherever he could with both an opened hand and
a closed fist – indeed were general in nature, Dylynn also
described a specific incident to investigating personnel where
respondent put him in a headlock and tried to choke him. In this
regard, "it is well settled that a child's out-of-court statement
of abuse or neglect may be admitted in a Family Ct Act article 10
proceeding provided it is corroborated by any other evidence
tending to support its reliability" (Matter of Kimberly Z. [Jason
Z.], 88 AD3d 1181, 1182 [2011] [internal quotation marks,
brackets and citations omitted]; see Family Ct Act § 1046 [a]
[vi]; Matter of Branden P. [Corey P.], 90 AD3d 1186, 1188
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[2011]). While the mere repetition of an accusation by a child
is insufficient to corroborate the child's prior account of abuse
or neglect (see Matter of Cadence GG. [Lindsay II.], 124 AD3d
952, 953-954 [2015]; Matter of Kimberly CC. v Gerry CC., 86 AD3d
728, 730 [2011]), "[a] relatively low degree of corroborative
evidence is sufficient 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 unless clearly unsupported
by the record" (Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1182
[internal quotation marks and citations omitted]; see Matter of
Olivia C. [Scott E.], 97 AD3d 910, 912 [2012], lv denied 19 NY3d
814 [2012]).
Here, the children's grandmother testified as to an
incident that occurred in January 2013 when respondent placed
Dylynn in a headlock.3 Specifically, the grandmother testified
that respondent and Dylynn were "hollering at" one another when
respondent took a step toward the child, in response to which
Dylynn "put his hands up to protect himself." The grandmother
went on to state, "[The] next thing I knew Dylynn was down on the
floor with his feet and his hands behind [him]"; respondent had
"[o]ne arm around [Dylynn's] neck" and the other arm around the
child's body, and the grandmother heard respondent say that "he
would end up killing [Dylynn] if [Dylynn] didn't shut up." The
incident ended after the children's mother "beat[] on
[respondent's] back to get him off of Dylynn." This incident
also was witnessed by the children's grandfather, who stated that
respondent "[held Dylynn] down on the floor beating on him."
When the children's mother intervened, respondent "hit her too
. . . because [she] was interfering."
The children's grandfather also testified as to additional
incidents that occurred within respondent's household, noting
that "there was . . . a lot of abuse in the home" during the time
that he and his wife were living there. According to the
3
The grandparents lived with the children, their mother
and respondent for approximately one month beginning in January
2013.
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grandfather, respondent was particularly abusive toward Dylynn,
stating, "When Dylynn opened his mouth or tried to talk, . . . he
would get busted in the mouth or get thrown to the floor and told
to keep his mouth shut." The grandfather witnessed incidents
such as this "about four times" during the month that he resided
in respondent's household. The grandfather also described a
particular incident when respondent pinned Dylynn against a wall
in the family's residence – holding the child near his upper
chest and neck "so he couldn't move" – and "hitting on him and so
forth." Again, the incident ended when the children's mother
intervened and told respondent to stop. In addition to the
foregoing, the grandfather also testified that respondent
"disciplined [Deborah] quite a bit" by spanking her "[o]n the
bottom end" in a manner that the grandfather deemed to be beyond
what was "appropriate."
"A single incident of excessive corporal punishment may
form the basis for a neglect finding" (Matter of Dawn M. [Michael
M.], 134 AD3d 1197, 1197 [2015] [citation omitted]; see Matter of
Benjamin VV. [Larry VV.], 92 AD3d 1107, 1108 [2012]; Matter of
Steven M. [Stephvon O.], 88 AD3d 1099, 1101 [2011]) and, to our
analysis, the grandparents' sworn testimony is more than
sufficient to corroborate – at the very least – Dylynn's out-of-
court statement regarding the "headlock" incident. Accordingly,
we find ample support for Family Court's finding of neglect as to
Dylynn (see Matter of Dylan TT. [Kenneth UU.], 75 AD3d 783, 783-
784 [2010]; Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 680
[2010]). As for Deborah, the child informed one of petitioner's
caseworkers that respondent "hit all of them . . . typically . .
. on the back, bottom and legs." According to Deborah, although
respondent "only ever used his hands" for hitting and spanking,
he "had threatened to use a paddle or a belt." Additionally, the
child told the caseworker that respondent "hits hard" and that,
when respondent did spank them, "he [would] hit them over and
over again." In our view, Deborah's statements were sufficiently
corroborated by Dylynn's substantially similar allegations of
physical abuse (see Matter of Dawn M. [Michael M.], 134 AD3d at
1198; Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d at 680), as
well as the grandfather's sworn testimony regarding the manner in
and frequency with which respondent spanked Deborah, thereby
supporting Family Court's finding of neglect as to her. Finally,
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as respondent's conduct with respect to Dylynn reflected "such an
impaired level of parental judgment as to create a substantial
risk of harm for any child in his care" (Matter of Dylan TT.
[Kenneth UU.], 75 AD3d at 784 [internal quotation marks, brackets
and citation omitted]; accord Matter of Joseph RR. [Lynn TT.], 86
AD3d 723, 725 [2011]), we find ample evidence to support Family
Court's additional finding of derivative neglect as to Deborah.
Respondent's remaining arguments, to the extent not specifically
addressed, have been examined and found to be lacking in merit.
McCarthy, J.P., Lynch and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court