In the Matter of Angela-Marie C. (Anonymous).
Renee C. (Anonymous), appellant. Westchester County Department of Social Services, respondent; Renee C. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Toni-Marie B. (Anonymous), respondent, (Proceeding No. 2) In the Matter of Toni-Marie B. (Anonymous), petitioner,
Westchester County Department of Social Services, respondent. (Proceeding No. 3) Docket Nos. N-9928-15, V-10106-15, V-10107-15
- May 29, 2018
M. Rosoff, White Plains, NY, for appellant.
M. Nonna, County Attorney, White Plains, NY (Allison E. Burke
and David Chen of counsel), for respondent in Proceeding No.
Marchetti-Bruck, White Plains, NY, for respondent in
Proceeding No. 2. Eve Bunting-Smith, White Plains, NY,
attorney for child.
C. DILLON, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN COLLEEN D.
DECISION & ORDER
related proceedings pursuant to Family Court Act articles 6
and 10, the mother appeals from (1) an order of the Family
Court, Westchester County (Michelle I. Schauer, J.), dated
March 16, 2017, and (2) an order of fact-finding and
disposition of the same court dated April 4, 2017. The order
dated March 16, 2017, insofar as appealed from, after a
hearing, granted the petitions of Toni-Marie B. for custody
of the subject child. The order of fact-finding and
disposition, after fact-finding and dispositional hearings,
and upon the order dated March 16, 2017, found that the
mother neglected the subject child and awarded Toni-Marie B.
custody of the subject child.
that the order dated March 16, 2017, is affirmed insofar as
appealed from, without costs or disbursements; and it is
further, ORDERED that the order of fact-finding and
disposition is affirmed, without costs or disbursements.
August 2015, the Westchester County Department of Social
Services (hereinafter DSS) commenced a neglect proceeding
against the mother of the then 14-year-old subject child,
alleging that the mother had scratched the child's face,
chest, and arms, and had burned her with cigarettes. At or
around the same time, Toni-Marie B., the child's adult
sister (hereinafter the sister), filed two petitions pursuant
to Family Court Act article 6 seeking custody of the child.
During the pendency of the proceedings, the child's
temporary placement was modified to place her in the
temporary custody of the sister. Following a fact-finding
hearing on the neglect petition, the Family Court found that
the mother had neglected the child. Following a consolidated
dispositional hearing on the neglect and custody petitions,
the court awarded custody of the child to the sister pursuant
to Family Court Act article 6. The mother appeals.
fact-finding hearing in a child protective proceeding
pursuant to Family Court Act article 10, the petitioner has
the burden of establishing, by a preponderance of the
evidence, that the subject child has been abused or neglected
(see Family Ct Act §§ 1012[f][i];
1046[b][i]). The Family Court's assessment of the
credibility of witnesses is entitled to considerable
deference unless clearly unsupported by the record (see
Matter of Irene O., 38 N.Y.2d 776, 777; Matter
of Maurice M. [Suzanne H.], 158 A.D.3d 689, 691).
we agree with the Family Court's finding that DSS
established, by a preponderance of the evidence, that the
mother had neglected the child. The child's out-of-court
statements were sufficiently corroborated by the
caseworker's observations of the child's injuries,
photographs of the child's injuries, and the mother's
own admission that she may have scratched the child during an
altercation (see Family Ct Act § 1046[a] [vi];
Matter of Jehozadak B.W. [Shira E.W.], 134 A.D.3d
729, 729; Matter of Jallah J. [George J.], 118
A.D.3d 1000, 1001). Although the mother disputed the
allegations, the court determined that she was not credible
based on her unsupported allegations, contradictory
testimony, and disruptive courtroom behavior (see Matter
of Madison H. [Demezz H.-Tabitha A.], 99 A.D.3d 475,
476; Matter of Caraballo v Colon, 9 A.D.3d 459,
460). There is no basis in the record to disturb the
court's assessment of the witnesses' credibility
(see Matter of Dayannie I.M. [Roger I.M.J,
138 A.D.3d 747, 749).
consolidated dispositional hearing, the sister demonstrated
the existence of extraordinary circumstances supporting an
award of custody to her and that an award of custody to her
would be in the child's best interests (see
Family Ct Act § 1055-b[a][iv][A]; Matter of Bennett
v Jeffreys,40 N.Y.2d 543, 546; Matter of Garcia v
Ramos,79 A.D.3d 872, 873). The child, who was thriving
while in her sister's care and who wished to reside with
her sister, had been out of her mother's care for 19
months and had no contact with her mother, who refused to
comply with recommended services and wanted the child to
remain in foster care. Accordingly, the Family Court