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In re Arique D. (Anonymous)

Supreme Court of New York, Second Department

November 6, 2013

In the Matter of Arique D. (Anonymous).
v.
In the Matter of Elizavetha V. (Anonymous). Administration for Children's Services, petitioner-respondent; and Elizabeth A. (Anonymous), appellant; et al., respondent. (Proceeding No. 1) In the Matter of Joseph D. (Anonymous). Administration for Children's Services, petitioner-respondent; and Elizabeth A. (Anonymous), appellant; et al., respondent. (Proceeding No. 2) Administration for Children's Services, petitioner-respondent; and Elizabeth A. (Anonymous), appellant; et al., respondent. (Proceeding No. 3) In the Matter of Jason D. (Anonymous). Administration for Children's Services, petitioner-respondent; and Elizabeth A. (Anonymous), appellant; et al., respondent. (Proceeding No. 4) In the Matter of Benjamin D. (Anonymous). Administration for Children's Services, petitioner-respondent; and Elizabeth A. (Anonymous), appellant; et al., respondent. (Proceeding No. 5) In the Matter of Aalyah V. (Anonymous). Administration for Children's Services, petitioner-respondent; and Elizabeth A. (Anonymous), appellant; et al., respondent. (Proceeding No. 6) Docket Nos. N-260-10, N-261-10, N-262-10, N-263-10, N-264-10, N-265-10

Catherine S. Bridge, Staten Island, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Dona B. Morris of counsel), for petitioner- respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Adira J. Hulower of counsel), attorney for the children.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In six related neglect proceedings pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Richmond County (Wolff, J.), dated June 4, 2012, as, after fact-finding and dispositional hearings, found that she neglected the children Arique D., Benjamin D., Joseph D., and Jason D., and derivatively neglected the children Elizavetha V. and Aalyah V., and placed the children in the custody of the Commissioner of Social Services of the City of New York until the next permanency hearing.

ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the children in the custody of the Commissioner of Social Services of the City of New York until the next permanency hearing, and so much of the order of fact-finding and disposition as relates to Arique D., and Benjamin D., are dismissed as academic, without costs or disbursements; and it is further,

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

The appeal from so much of the order of fact-finding and disposition as placed the children in the custody of the Commissioner of Social Services of the City of New York until the next permanency hearing must be dismissed as academic, as that portion of the order has already expired (see Matter of Amiya S. [ Twana J.F. ], 100 A.D.3d 763, 764; Matter of Sylvia J., 23 A.D.3d 560, 561; Matter of Ciara M., 273 A.D.2d 312, 314). Since the children Arique D. and Benjamin D. are now over 18 years of age, they are no longer subject to the order appealed from (see Matter of Angelina L. C. [ Michael C. ], ___ A.D.3d ___, 2013 NY Slip Op 06565 [2d Dept 2013]; Matter of Hershko v Hershko, 103 A.D.3d 635; Matter of Julian B. v Williams, 97 A.D.3d 670, 671). Accordingly, the appeal from so much of the order of fact-finding and disposition as related to them must be dismissed as academic as well.

Family Court Act § 1012(f)(i) defines a "neglected child" as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care in, inter alia, "supplying the child with adequate food... though financially able to do so or offered financial or other reasonable means to do so" (Family Ct Act § 1012[f][i][A]), or "in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment... or by any other acts of a similarly serious nature requiring the aid of the court" (Family Ct Act § 1012[f][i][B]).

In a child protective proceeding, "[u]nsworn out-of-court statements of the [subject child] may be received and, if properly corroborated, will support a finding of abuse or neglect" (Matter of Nicole V., 71 N.Y.2d 112, 117-118, see Family Ct Act § 1046[a][vi]; Matter of Anthony S. [ Dawn N. ], 98 A.D.3d 519, 520).

Here, the out-of-court statements of siblings Jason and Joseph to the caseworker that they were struck on more than one occasion by the mother and/or the father were corroborated (see Family Ct Act § 1046[a][vi]), inter alia, by the caseworker's personal observation of an injury sustained by one of the children and by the confirmation given by the siblings Benjamin, Arique, and Elizavetha (see Matter of Iouke H. [ Terrance H. ], 94 A.D.3d 889, 891), as well as by their own cross-corroborating statements (see Matter of Nicole V., 71 N.Y.2d at 118; Matter of Maria Daniella R. [ Maria A. ], 84 A.D.3d 1384, 1385; Matter of Joshua B., 28 A.D.3d 759, 761). Further, the Family Court properly took judicial notice of the prior neglect adjudications against the mother and the father based on the use of excessive corporal punishment (see Family Ct Act § 1046[a][i]). Moreover, the Family Court's determination that the father lacked credibility when he testified that he never hit the children is entitled to deference (see Matter of Isaiah S., 63 A.D.3d 948, 949).

In addition to the finding of excessive corporal punishment, the record likewise supports the finding that Jason and Joseph were neglected as a result of the mother's failure to exercise a minimum degree of care in supplying them with adequate food (Family Ct Act § 1012[f][i][A]), and in providing Jason with proper supervision or guardianship (Family Ct Act § 1012[f][i][B]). The record also supports the finding that Elizavetha and Aalyah were derivatively neglected.

The mother's remaining contentions are without merit.

SKELOS, J.P., DICKERSON, HALL and MILLER, JJ., concur.


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