Admin. for Children's Servs. v. Ketly M. (In re Alven V. )

194 A.D.3d 725

143 N.Y.S.3d 577 (Mem)

In the MATTER OF ALVEN V. (Anonymous).

Administration for Children's Services, respondent;

v.Ketly M. (Anonymous), appellant.

(Proceeding No. 1)

In the Matter of Isadora V. (Anonymous).

Administration for Children's Services, respondent;

v.Ketly M. (Anonymous), appellant.

(Proceeding No. 2)

In the Matter of Naiselo V. (Anonymous).

Administration for Children's Services, respondent;

v.Ketly M. (Anonymous), appellant.

(Proceeding No. 3)

2020–02471

Docket Nos. NN–07757–18, NN–07758–18, NN–07759–18

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

Argued—April 8, 2021

May 5, 2021

Carol L. Kahn, New York, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Daniel Matza–Brown and Deborah E. Wassel of counsel), for respondent.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Susan Clement of counsel), attorney for the children.

MARK C. DILLON, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the stepmother appeals from an order of fact-finding and disposition of the Family Court, Kings County (Melody Glover, J.), dated February 5, 2020. The order of fact-finding and disposition, insofar as appealed from, after a fact-finding hearing, found that the stepmother neglected the child Isadora V. and derivatively neglected the children Alven V. and Naiselov V.

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

The petitioner commenced these neglect proceedings against the subject children's stepmother. Following a hearing, the Family Court determined that the stepmother neglected the child Isadora V. by inflicting excessive corporal punishment, and derivatively neglected the children Alven V. and Naiselov V. On consent, the children were placed in the custody of the Commissioner of Social Services of the City of New York, and an order of protection was entered against the stepmother. The stepmother appeals from the fact-finding determinations.

In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act § 1046[b][i] ). To satisfy this burden, the petitioner may rely upon prior out-of-court statements of the subject children, provided that they are properly corroborated (see id. § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ). " ‘Any other evidence tending to support the reliability of the previous statements ... shall be sufficient corroboration’ " ( Matter of Zeeva M. [Abraham M.], 126 A.D.3d 799, 800, 5 N.Y.S.3d 258, quoting Family Ct Act § 1046[a][vi] ). The out-of-court statements of siblings may cross-corroborate one another where they independently describe similar incidents of neglect (see Matter of Kevin D. [Quran S.S.], 169 A.D.3d 1034, 1036, 94 N.Y.S.3d 565 ; Matter of Michael B. [Samantha B.], 130 A.D.3d 619, 620, 13 N.Y.S.3d 196 ; Matter of Arique D. [Elizabeth A.], 111 A.D.3d 625, 627, 975 N.Y.S.2d 82 ). The Family Court has considerable discretion to decide whether the child's out-of-court statements describing incidents of neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of neglect (see Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 ; Matter of Victoria P. [Victor P.], 121 A.D.3d 1006, 1007, 994 N.Y.S.2d 409 ). The Family Court's assessment of credibility of the witnesses is entitled to considerable deference unless clearly unsupported by the record (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 ; Matter of Khadijah S. [Calondra A.], 186 A.D.3d 1223, 1225, 129 N.Y.S.3d 143 ).

"Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect" ( Matter of Janiya T. [Johnas M.], 191 A.D.3d 681, 682–683, 137 N.Y.S.3d 741 [internal quotation marks omitted]; see Family Ct Act § 1012[f][i][B] ; Matter of Elisa V. [Hung V.], 159 A.D.3d 827, 828, 71 N.Y.S.3d 626 ).

Here, a preponderance of the evidence supported the Family Court's determination that the stepmother neglected Isadora V. by inflicting excessive corporal punishment on her. The children's out-of-court statements that the stepmother hit Isadora V. with a hanger, and had previously disciplined the children by hitting them with a belt, a television cord or wire,...