In re James S.

88 A.D.3d 1006, 931 N.Y.2d 524

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2011
• Status: Published

Opinion

Contrary to the mother’s contention, the Family Court’s finding of neglect as to the child James S., based on her use of excessive corporal punishment, is supported by a preponderance of the evidence (see Family Ct Act § 1012 [f] [i] [B]; § 1046 [b] [i]). That child’s out-of-court statement regarding the use of corporal punishment by the mother was sufficiently corroborated by a caseworker’s observation of the injury (see Matter of Isaiah S., 63 AD3d 948, 949 [2009]; Matter of Derek J., 56 AD3d 558, 558-559 [2008]; Matter of Joshua B., 28 AD3d 759, 760-761 [2006]). That evidence, together with a negative inference drawn from the mother’s failure to testify, was sufficient to support the Family Court’s finding of neglect as to James S. (see Matter of Maria Daniella R. [Maria A.], 84 AD3d 1384 [2011]; Matter of Charlie S. [Rong S.], 82 AD3d 1248 [2011]; Matter of Imman H., 49 AD3d 879 [2008]). Furthermore, since the mother’s conduct toward James S. demonstrated a fundamental defect in her understanding of parental duties relating to the care of children, there was sufficient evidence from which to make a finding of derivative neglect as to the child Nicholas R.W. (see Family Ct Act § 1046 [a] [i]; see also Matter of Devontay M., 56 AD3d 561 [2008]; Matter of Nicholas L., 50 AD3d 1141 [2008]).

In addition to the single incident of use of excessive corporal punishment, which is sufficient to sustain a finding of neglect (see Matter of Alexander J.S. [David S.], 72 AD3d 829, 830 [2010]; Matter of Rachel H., 60 AD3d 1060, 1061 [2009]), the Family Court’s finding that the mother had previously engaged in a pattern of erratic conduct that demonstrated her inability to provide the children with proper supervision or guardianship is supported by a preponderance of the evidence (see Matter of Ashanti R., 66 AD3d 1031, 1032 [2009]; Matter of Lester M., 44 AD3d 944, 945 [2007]). Angiolillo, J.E, Dickerson, Chambers and Lott, JJ., concur.