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In re Dalys C.-G.

Supreme Court of New York, First Department

January 30, 2014

In re Marelyn Dalys C.-G., A Child Under The Age of Eighteen Years, etc., and Marcial C., Respondent-Appellant, Administration for Children's Services Petitioner-Respondent.

Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Claire V. Merkine of counsel), attorney for the child.

Gonzalez, P.J., Friedman, Renwick, Freedman, Richter, JJ.

Order of fact-finding and disposition, Family Court, Bronx County (Jane Pearl, J.), entered on or about January 10, 2013, which, to the extent appealed from, after a hearing, found that respondent abused and neglected the subject child, unanimously affirmed, without costs.

A preponderance of the evidence supports the determination that respondent abused the child by committing offenses against her defined in Penal Law article 130 (see Family Court Act §§ 1012[e][iii], [f][i][B]; 1046[b][I]). The court found the child's testimony at the hearing credible, notwithstanding any alleged inconsistencies, and we see no basis for disturbing that finding (see Matter of Irene O., 38 N.Y.2d 776 [1975]). The child's testimony is competent evidence of abuse, and need not be corroborated by evidence of serious physical injury or other evidence (Matter of Christina G. [Vladimir G.], 100 A.D.3d 454 [1st Dept 2012], lv denied 20 N.Y.3d 859 [2013]). In any event, it was corroborated by the caseworker's testimony as to the out-of-court statements by the child's stepsister and stepbrother (see Matter of Tiara G. [Cheryl R.], 102 A.D.3d 611 [1st Dept 2013], lv denied 21 N.Y.3d 855 [2013]; see also Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659 [1st Dept 2013]).

The determination that respondent neglected the child by inflicting excessive corporal punishment on her (see Family Court Act § 1012[f][i][B]) is also supported by a preponderance of the evidence. The child's testimony was sufficient to support the determination (see Matter of Dayanara V. [Carlos V.], 101 A.D.3d 411 [1st Dept 2012]). In any event, it was corroborated by the caseworker's testimony that the child's stepbrother said he saw respondent beat the child on June 13, 2012, leaving bruises on her face, and that he had seen respondent beat her on previous occasions, and the caseworker's testimony that he observed a bruise on the child's face on June 19, 2012 (see Matter of Tiara G., 102 A.D.3d at 611-612; Matter of Ameena C. [Wykisha C.], 83 A.D.3d 606 [1st Dept 2011]). The fact that a beating of the severity described by the child and her stepbrother occurred only once does not negate the finding of neglect (Matter of Cevon W. [Talisha W.], 110 A.D.3d 542 [1st Dept 2013]).

The court properly drew a negative inference against respondent since, after petitioner established its prima facie case, respondent failed to meet his burden of explaining his conduct and rebutting the evidence against him (see Matter of Ashley M.V., 106 A.D.3d at 660).


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