B., JAYDEN, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
158
CAF 11-00694
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.
IN THE MATTER OF JAYDEN B. AND NATHAN F.
--------------------------------------------
OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-APPELLANT;
ERICA R., RESPONDENT-RESPONDENT.
NELSON LAW FIRM, MEXICO (ANNALISE M. DYKAS OF COUNSEL), FOR
PETITIONER-APPELLANT.
COURTNEY S. RADICK, ATTORNEY FOR THE CHILD, OSWEGO, FOR JAYDEN B.
STEPHANIE N. DAVIS, ATTORNEY FOR THE CHILD, OSWEGO, FOR NATHAN F.
Appeal from an order of the Family Court, Oswego County (Kimberly
M. Seager, J.), entered March 24, 2011 in a proceeding pursuant to
Family Court Act article 10. The order dismissed the petition.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petition is
granted, and the matter is remitted to Family Court, Oswego County,
for further proceedings in accordance with the following Memorandum:
We conclude that Family Court erred in determining that petitioner
failed to prove by a preponderance of the evidence that the children
who are the subject of this proceeding are neglected children based
upon, inter alia, domestic violence between respondent and the mother
of the children and in therefore dismissing the petition herein (see
Family Ct Act § 1046 [a]). We note at the outset that the respective
Attorneys for the Children did not take an appeal from the order, and
thus to the extent that their briefs raise contentions not raised by
petitioner, they have not been considered (see Matter of Sharyn PP. v
Richard QQ., 83 AD3d 1140, 1143-1144).
Upon our review of the record, we conclude that petitioner
established by a preponderance of the evidence that the children were
in imminent danger of emotional impairment based upon the alleged
incidents of domestic violence between the children’s mother and
respondent (see Family Ct Act § 1012 [f] [i] [B]; Matter of Afton C.,
17 NY3d 1, 8-9). We note that, in connection with her admission in
the separate neglect proceeding brought against her, the mother
admitted that she and respondent “had several disagreements and
arguments . . . in the presence of the children and [that] sometimes
[the children] were afraid.” Respondent failed to appear at the
instant fact-finding hearing, and thus we draw the “strongest
-2- 158
CAF 11-00694
inference [against her] that the opposing evidence permits” based upon
her failure to testify at the hearing (Matter of Nassau County Dept.
of Social Servs. v Denise J., 87 NY2d 73, 79; see Matter of Kennedie
M., 89 AD3d 1544, 1545).
According to the evidence presented at the fact-finding hearing,
when the police responded to the residence on a specified date, both
the mother and respondent admitted that they had been engaged in a
loud argument in the living room, during which they struck each other.
The police officer observed a scratch on the mother’s neck, which the
mother admitted she received while she and respondent were “fighting.”
The police officer further observed that the one-year-old child
(younger child) was crying in a bedroom, and he described the child as
“shook up” and “scared.” We conclude that the younger child’s
proximity to the physical and verbal fighting that occurred in the
living room, together with the evidence of a pattern of ongoing
domestic violence in the home, placed him in imminent risk of
emotional harm (see Kennedie M., 89 AD3d at 1545; cf. Matter of Larry
O., 13 AD3d 633).
Although the hearing court’s determinations are entitled to great
deference (see generally Matter of Syira W., 78 AD3d 1552, 1553), we
conclude that the court’s determination that the statements of the
five-year-old child (older child) were not corroborated is not
supported by a sound and substantial basis in the record.
“Corroboration, for purposes of article 10 proceedings, is defined to
mean ‘[a]ny other evidence tending to support the reliability of the
previous statements’ ” of the child (Matter of Christina F., 74 NY2d
532, 536), and here we conclude that the older child’s statements were
sufficiently corroborated.
The caseworker for Child Protective Services testified at the
fact-finding hearing that the body language of the older child changed
when he spoke about his mother and respondent, and that he refused to
talk to her while he was at his mother’s house. While at his father’s
house, however, the older child explained to the caseworker that he
did not want to speak with her at his mother’s house because his
mother repeatedly entered and then left the room. He told the
caseworker that his mother and respondent fought often; that
respondent had locked them out of the house; and that he was afraid of
respondent. He demonstrated with the use of two “Barbie” dolls a
physical fight that involved hair-pulling and pushing, which ended
with the intervention of a male doll, who represented a police
officer. Furthermore, the evidence at the fact-finding hearing
established that the police responded to the home of respondent and
the mother on several occasions for reports of domestic violence. A
neighbor testified that she heard loud fighting between respondent and
the mother on a weekly basis and that she observed the police
responding to those fights at least once per month. The neighbor
further testified that she had seen that the mother had been locked
out of the house by respondent on more than one occasion. The child
care provider for the children testified that the older child told her
on several occasions that respondent hurt his mother, and the child
care provider in fact observed a large bruise on the mother’s face.
-3- 158
CAF 11-00694
When she questioned the mother about the bruise, the mother explained
that it had happened in a bar, but after his mother left the house the
older child told the child care provider that “[respondent] did it.”
We therefore further conclude that the ongoing pattern of domestic
violence also placed the older child in imminent risk of emotional
harm, thus compelling the conclusion that both children are neglected
based upon the actions of respondent (see Kennedie M., 89 AD3d at
1545). We thus reverse the order, grant the petition, and remit the
matter to Family Court for a dispositional hearing.
Entered: January 31, 2012 Frances E. Cafarell
Clerk of the Court