Matter of Dawn M. , 21 N.Y.S.3d 436 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 519754
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In the Matter of DAWN M. and
Others, Alleged to be
Neglected Children.
BROOME COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
MICHAEL M.,
Appellant.
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Calendar Date: October 23, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.
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Samuel D. Castellino, Big Flats, for appellant.
Kuredin V. Eytina, Broome County Department of Social
Services, Binghamton, for respondent.
Steven J. Getman, Interlaken, attorney for the children.
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Devine, J.
Appeal from an order of the Family Court of Broome County
(Pines, J.), entered June 10, 2014, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article
10, to adjudicate respondent's children to be neglected.
Respondent is the father of Desirae M. (born in 2004),
Samantha M. (born in 2007), Summer M. (born in 2008) and Dawn M.
(born in 2009), all four of whom were living with him at the home
of the paternal grandmother. Desirae was observed to have
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bruising on her face in September 2013 and, upon inquiry by
investigators, both she and two of her sisters accused respondent
of having struck her. Petitioner commenced this Family Ct Act
article 10 neglect proceeding soon thereafter and, following a
fact-finding hearing, Family Court adjudicated Desirae to be
neglected and her sisters to be derivatively neglected.
Respondent stipulated to the terms of the ensuing dispositional
order, and he now appeals.
Contrary to respondent's contention, there was ample proof
in the record to support the finding of neglect with regard to
Desirae. "[A] neglected child is one, as relevant here, 'whose
physical, mental or emotional condition has been impaired or is
in imminent danger of becoming impaired as a result of . . . the
infliction of excessive corporal punishment'" (Matter of Nicholas
S. [John T.], 107 AD3d 1307, 1308 [2013], lv denied 22 NY3d 854
[2013], quoting Family Ct Act § 1012 [f] [i] [B]; see Matter of
Benjamin VV. [Larry VV.], 92 AD3d 1107, 1108 [2012]). A single
incident of excessive corporal punishment may form the basis for
a neglect finding (see Matter of Benjamin VV. [Larry VV.], 92
AD3d at 1108).
Desirae indisputably sustained a facial injury, with large
marks visible in photographs taken the day after the incident.
An employee of petitioner who investigated the incident, Kathleen
Bednar, testified that both she and a doctor who examined Desirae
believed the markings to be consistent with an adult handprint.
Although Desirae initially gave a different account of what
caused her injury, she later affirmed in a supporting deposition
that her father had become angry and struck her in the face after
she told her mother that he had not helped with her homework.
Two of her sisters also disclosed that their father had struck
Desirae and, while none of the children testified, their out-of-
court statements cross-corroborated one another and were further
corroborated by the testimony and documentary evidence presented
at the hearing (see Family Ct Act § 1046 [a] [vi]; Matter of
Benjamin VV. [Larry VV.], 92 AD3d at 1108; Matter of Bianca QQ.
[Kiyonna SS.], 75 AD3d 679, 680 [2010]). Although respondent and
the paternal grandmother offered a plethora of alternate
explanations for the injuries sustained by Desirae, "according
due deference to the court's credibility determinations, we find
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Family Court's determination of neglect with respect to [Desirae]
to be supported by the record" (Matter of Benjamin VV. [Larry
VV.], 92 AD3d at 1109 [internal citation omitted]).
To the extent that respondent challenges the further
finding of derivative neglect with regard to the other three
children, "proof of . . . neglect of one child is admissible to
support a finding of neglect against another child" (Matter of
Shay-Nah FF. [Theresa GG.], 106 AD3d 1398, 1400 [2013], lv denied
21 NY3d 863 [2013]; see Family Ct Act § 1046 [a] [i]). Inasmuch
as the record "demonstrates fundamental flaws in [respondent's]
understanding of the duties of parenthood . . . that are so
profound as to place any child in his . . . care at substantial
risk of harm," most notably with proof of respondent's failure to
engage in rehabilitative services as required by a 2013
adjudication that he had neglected all four children, no basis
exists to disturb the finding of derivative neglect (Matter of
Alexander Z. [Melissa Z.], 129 AD3d 1160, 1163 [2015], lv
denied 25 NY3d 914 [2015] [internal quotation marks and citations
omitted]; see Matter of Sumaria D. [Madelyn D.], 121 AD3d 1203,
1205-1206 [2014]; Matter of Sidney FF., 44 AD3d 1121, 1122-1123
[2007]).
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court