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In re Jocelyn L.

Supreme Court of New York, First Department

January 16, 2014

In re Jocelyn L., and Another, Children Under the Age of Eighteen Years, etc., and Elizabeth T., et al., Respondents-Appellants, Administration for Children's Services, Petitioner-Respondent.

Anne Reiniger, New York, for Elizabeth T., appellant.

Michael S. Bromberg, Sag Harbor, for Oscar N., appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.

Karen Freedman, Lawyers For Children, Inc., New York and Mayer Brown LLP, New York (Allison Levine Stillman of counsel), attorney for the child Jocelyn L.

Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child Jennice L.

Mazzarelli, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.

Order of fact-finding, Family Court, New York County (Clark V. Richardson, J.), entered on or about February 9, 2012, which, to the extent appealed from, after a hearing, determined that respondent mother had neglected the child Jocelyn L., and derivatively neglected the child Jennice L., unanimously affirmed, without costs. Order of disposition, same court and Judge, entered on or about August 1, 2012, which, to the extent appealed from as limited by the briefs, upon the aforementioned fact-finding order, found that respondent Oscar N. had abused the child Jocelyn L., and derivatively abused the child Jennice L., unanimously affirmed, without costs.

The court's respective findings of sexual abuse by respondent Oscar N. and of neglect as a result of excessive corporal punishment by respondent mother were supported by a preponderance of the evidence (see Family Ct Act § 1046[b][i]; see Matter of Dayanara V. [Carlos V.], 101 A.D.3d 411, 412 [1st Dept 2012]; see also Matter of Joshua J.P. [Deborah P.], 105 A.D.3d 552 [1st Dept 2013]; Matter of Afton C. [James C.], 17 N.Y.3d 1, 9 [2011]). There is no basis to disturb the court's credibility determinations crediting the testimony given by Jocelyn, and discrediting the testimony given by the mother (see Matter of Everett C. v Oneida P., 61 A.D.3d 489 [1st Dept 2009]; Matter of Melind M. v Joseph P., 95 A.D.3d 553, 555 [1st Dept 2012]; Matter of Aaron C. [Grace C.], 105 A.D.3d 548 [1st Dept 2013]). The court was also entitled to draw a negative inference from respondent Oscar N.'s failure to testify or present evidence (see Matter of Eugene L. [Julianna H.], 83 A.D.3d 490 [1st Dept 2011]). Based on the social worker's opinion that Jocelyn's well-being would be severely compromised if she were required to testify in the respondents' presence, the court appropriately permitted Jocelyn to testify by closed circuit television (see Matter of Giannis F. [Vilma C.-Manny M.], 95 A.D.3d 618 [1st Dept 2012]).

Moreover, the court's respective findings of derivative abuse and neglect with respect to Jennice were warranted under the circumstances (see Matter of Amerriah S. [Kadiatou Y.], 100 A.D.3d 1006, 1007 [2d Dept 2012], lv dismissed 21 N.Y.3d 884 [2013]).

We have considered appellants' remaining arguments and find them unavailing.


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