Dutchess Cnty. Dep't of Cmty. & Family Servs. v. Tianna S. (In re Skye H.)

195 A.D.3d 711

149 N.Y.S.3d 535

In the MATTER OF SKYE H. (Anonymous).

Dutchess County Department of Community and Family Services, respondent;

v.Tianna S. (Anonymous), et al., appellants.

(Proceeding No. 1)

In the Matter of Davion H. (Anonymous).

Dutchess County Department of Community and Family Services, respondent;

v.Tianna S. (Anonymous), et al., appellants.

(Proceeding No. 2)

In the Matter of Troy H. (Anonymous).

Dutchess County Department of Community and Family Services, respondent;

v.Tianna S. (Anonymous), et al., appellants.

(Proceeding No. 3)

In the Matter of Nathaniel S. (Anonymous).

Dutchess County Department of Community and Family Services, respondent;

v.Tianna S. (Anonymous), et al., appellants.

(Proceeding No. 4)

2019–01017, 2019–13026

Docket Nos. N–2551–17, N–2252–17, N–2553–17, N–2556–17, N–2557–17, N–2558–17, N–2559–17, N–2260–17

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

Submitted—May 17, 2021

June 9, 2021

Tianna S. and Matthew S., Glenham, NY, appellants pro se.

Caroline E. Blackburn, County Attorney, Poughkeepsie, N.Y. (Laura Gail Skojec of counsel), for respondent.

Thomas M. Gambino, Poughkeepsie, NY, attorney for the children.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, BETSY BARROS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother and Matthew S. appeal from (1) an order of fact-finding of the Family Court, Dutchess County (Joseph A. Egitto, J.), dated January 3, 2019, and (2) an order of disposition of the same court dated September 30, 2019. The order of fact-finding, after a fact-finding hearing, found that the mother and Matthew S. neglected the subject children Skye H., Davion H., and Troy H., and derivatively neglected the subject child Nathaniel S. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, continued the placement of the subject children in the care of the petitioner for a period of up to 12 months and placed the mother and Matthew S. under the supervision of the petitioner for a period of up to 12 months.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the appeal from so much of the order of disposition as continued the placement of the subject children in the care of the petitioner for a period of up to 12 months and placed the mother and Matthew S. under the supervision of the petitioner for a period of up to 12 months is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order of disposition as relates to the custody and parental access provisions of the order of disposition pertaining to the subject child Skye H. is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

The appeal from so much of the order of disposition as continued the placement of the subject children in the care of the petitioner for a period of up to 12 months and placed the mother and Matthew S., who is the stepfather of subject children Skye H., Davion H., and Troy H. and the father of the subject child Nathaniel S., under the supervision of the petitioner for a period of up to 12 months has been rendered academic, as that portion of the order expired by its own terms (see Matter of Jermaine T. [Jairam T.], 193 A.D.3d 943, 146 N.Y.S.3d 662 ; Matter of Boobacar R. [Curtis G.], 188 A.D.3d 1073, 132 N.Y.S.3d 687 ; Matter of Eternity S. [Vanessa P.], 183 A.D.3d 748, 122 N.Y.S.3d 667 ). Furthermore, Skye is now 18 years old and is no longer subject to the custody and parental access provisions of the order of disposition (see Family Ct Act § 119[c] ; Matter of Jermaine T. [Jairam T.], 193 A.D.3d 943, 146 N.Y.S.3d 662 ).

However, the appeal from so much of the order of disposition as brings up for review the finding that the mother and Matthew (hereinafter together the appellants) neglected the children is not academic, since the adjudication of neglect constitutes a permanent stigma which might indirectly affect the appellants’ status in future proceedings (see Matter of Jermaine T. [Jairam T.], 193 A.D.3d 943, 146 N.Y.S.3d 662 ; Matter of Boobacar R. [Curtis G.], 188 A.D.3d at 1074, 132 N.Y.S.3d 687 ).

The Family Court properly found that the children Davion and Troy were neglected by the appellants. 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] ). Great deference is given to the Family Court's credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear the testimony, and observe their demeanor (see Matter of Je'laya J. [Tracey S.], 192 A.D.3d 1032, 144 N.Y.S.3d 215 ; Matter of Janiya T. [Johnas M.], 191 A.D.3d 681, 137 N.Y.S.3d 741 ; Matter of Kishanda S. [Stephan S.], 190 A.D.3d 747, 138 N.Y.S.3d 204 ).

Here, at the fact-finding hearing, both appellants invoked their Fifth Amendment rights and did not answer any questions or provide any evidence. This allowed the Family Court to draw the strongest inference against them that the opposing evidence in the record permits (see Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137, 463 N.Y.S.2d 761, 450 N.E.2d 681 ; Matter of Michael U. [Marcus U.], 110 A.D.3d 821, 973 N.Y.S.2d 676 ).

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. Even a single incident of excessive corporal punishment may suffice to sustain a finding of neglect (see Matter of Je'laya J. [Tracey S.], 192 A.D.3d at 1033, 144 N.Y.S.3d 215 ; Matter of Elijah P. [Jane W.], 191 A.D.3d 984, 142 N.Y.S.3d 203 ; Matter of Janiya T. [Johnas M.], 191 A.D.3d at 682–683, 137 N.Y.S.3d 741 ). Here, the Family Court correctly determined that the petitioner established by a preponderance of the evidence that the appellants neglected Davion and Troy by regularly inflicting excessive corporal punishment on them. The testimony of the children was not necessary to make a finding of neglect (see Family Ct Act § 1046[a][vi] ), but Skye and Davion did testify under oath at the hearing, and their sworn testimony was sufficient to establish a prima facie case of neglect (see Matter of Ida EE., 31 A.D.3d 923, 817 N.Y.S.2d 777 ; Matter of Alexander C., 30 A.D.3d 593, 818 N.Y.S.2d 150 ). Although no school official or agency caseworker testified that they observed physical injuries on the children, the absence of physical injury was not dispositive (see Matter of Jaivon J. [Patricia D.], 148...