Matter of David M. (Sonia M.-C.)

119 A.D.3d 800, 989 N.Y.S.2d 511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 2014
• Docket: 2013-00602
• Status: Published

Opinion

In a proceeding pursuant to Family Court Act article 10, Sonia M.-C. and Willie H. separately appeal, as limited by their respective briefs, from so much of an order of the Family Court, Westchester County (Klein, J.), dated December 27, 2012, as, after a fact-finding hearing, found that each of them had neglected the subject child.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship (see Family Ct Act § 1012 [f] [i] [B]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). In a child protective proceeding, the child’s prior out-of-court statements relating to the alleged neglect may serve as the basis for a finding of neglect “provided that these hearsay statements are corroborated, so as to ensure their reliability” (Matter of Alexis S. [Edward S.], 115 AD3d 866, 866 [2014] [internal quotation marks omitted]; see Family Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71 NY2d 112, 123 [1987]). “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046 [a] [vi]), and “[t]he Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated” (Matter of Alexis S. [Edward S.], 115 AD3d at 867 [internal quotation marks omitted]; see Matter of Nicole V, 71 NY2d at 119; Matter of Nicole G. [Louis G.], 105 AD3d 956 [2013]). “The Family Court’s credibility findings must be accorded considerable deference on appeal” (Matter of Alexis S. [Edward S.], 115 AD3d at 867; see Matter of Nurridin B. [Louis J.], 116 AD3d 770, 771 [2014]; Matter of Jada A. [Robert W.], 116 AD3d 769, 770 [2014]).

Here, the subject child was exposed to domestic violence. The mother testified that her relationship with the stepfather had been characterized by a pattern of domestic violence, and that the stepfather had engaged in acts of physical abuse against her on several occasions in the child’s presence. A caseworker testified that the child told her that he had witnessed the stepfather engage in domestic violence against the mother on multiple occasions, and that he was scared by these incidents and afraid for the mother. The child’s therapist also testified that the child had made such statements to her and had exhibited symptoms of trauma and fear in discussing the stepfather’s presence in the home. Based on this evidence, the Family Court properly concluded that the child’s mental and/or emotional condition had been harmed or had been at imminent risk of harm as a consequence of his exposure to the domestic violence between the mother and stepfather (see Family Ct Act § 1012 [f] [i] [B]; Nicholson v Scoppetta, 3 NY3d at 371-372; Matter of Anthony S. [Dawn N.], 98 AD3d 519, 520 [2012]; Matter of Jeaniya W. [Jean W.], 96 AD3d 622, 623 [2012]; Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1345-1346 [2012]; Matter of Clarissa S.P. [Jaris S.], 91 AD3d 785, 785-786 [2012]; Matter of Deandre T, 253 AD2d 497 [1998]).

Contrary to the mother’s contention, the evidence that she had continued to reside with the stepfather despite the recurring pattern of his violence against her in the child’s presence and without regard for the impact of the violence on the child, and had even rejected shelter and domestic violence services made available to her, established that she had neglected the child by failing to exercise a minimum degree of care in preventing him from being mentally or emotionally harmed (see Family Ct Act § 1012 [f] [i]; Nicholson v Scoppetta, 3 NY3d at 371-372; Matter of Aaron C. [Grace C.], 105 AD3d 548 [2013]; Matter of Anthony S. [Dawn N.], 98 AD3d at 520; Matter of Madison PP. [Tina QQ.], 88 AD3d 1102, 1103 [2011]).

The stepfather was afforded the effective assistance of counsel (see Family Ct Act § 262 [a] [i]; Matter of Darrell W. [Tenika C.], 110 AD3d 1088, 1089 [2013]; Matter of Alexander C. [Cassandra C.], 110 AD3d 1067, 1068 [2013]).

The mother’s arguments concerning an order of the Family Court dated May 18, 2011, are not properly before this Court since she did not appeal from that order (see CPLR 5515 [1]; Matter of Tekiara F. [Gayle A.E.], 116 AD3d 852 [2014]; Matter of Tara C. [Sonia C.], 106 AD3d 735 [2013]).

The remaining contentions of the mother and stepfather are without merit.

Dillon, J.E, Hall, Miller and Hinds-Radix, JJ., concur.