Matter of Dylynn V.

136 A.D.3d 1160, 26 N.Y.S.3d 369
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 18, 2016
Docket518252
StatusPublished
Cited by11 cases

This text of 136 A.D.3d 1160 (Matter of Dylynn V.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Dylynn V., 136 A.D.3d 1160, 26 N.Y.S.3d 369 (N.Y. Ct. App. 2016).

Opinion

Egan Jr., J.

Appeal from an order of the Family Court of Schuyler County (Morris, J.), entered December 18, 2013, which, among other things, granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

In July 2013, petitioner investigated allegations of neglect made against respondent by his stepson, Dylynn V. (born in 1999), wherein Dylynn alleged that respondent physically abused him, his sister, Deborah V. (born in 2001), and their mother, to whom respondent then was married. The investiga *1161 tion was prompted by a telephone call that Dylynn, with the assistance of his maternal grandfather and the grandfather’s wife, 1 had made to the Schuyler County Sheriffs Department and an interview of the child by a member of the State Police, during the course of which Dylynn revealed that he and his sister routinely were being hit by respondent and, further, described a specific incident in which respondent choked him while restraining him in a headlock on the floor. Following an investigation, petitioner commenced this neglect proceeding against respondent and obtained a temporary order of protection in favor of the children. 2 A fact-finding hearing ensued, at the conclusion of which Family Court found that respondent had neglected both Dylynn and Deborah and, further, that respondent had derivatively neglected Deborah. Following a dispositional hearing, at which it was revealed that Dylynn, Deborah and their mother had relocated out of state, Family Court issued an order of protection in favor of the children, which remained in effect until September 1, 2015. This appeal by respondent ensued.

We affirm. Preliminarily, although the combined dispositional order/order of protection expired by its own terms in September 2015, this appeal from Family Court’s fact-finding order (see Family Ct Act § 1112 [a]) is not moot, as the finding of neglect and derivative neglect against respondent “may adversely affect [him] in future matters” (Matter of Kali-Ann E., 27 AD3d 796, 797 n [2006], lv denied 7 NY3d 704 [2006]). Additionally, to the extent that respondent’s attorney suggested at oral argument that it was inappropriate for petitioner to continue to pursue this neglect proceeding against respondent once he and the children’s mother separated, suffice it to say that we find this argument to be entirely unpersuasive. Simply put, a parent or other person legally responsible for a child’s care cannot avoid the consequences of his or her prior actions by subsequently electing to vacate the premises or otherwise sever ties with the child’s remaining parent.

Turning to the merits, “[a] finding of neglect will be sustained if [the] petitioner demonstrated, by a preponderance of evidence, that the child [ren’s] physical, mental or emotional condition was harmed or is in imminent danger of such harm as a result of the parent’s [or caretaker’s] failure to exercise *1162 [the] minimum degree of care that a reasonably prudent person would have used under the circumstances” (Matter of Marcus JJ. [Robin JJ.], 135 AD3d 1002, 1004 [2016]; see Matter of Hailey XX. [Angel XX.], 127 AD3d 1266, 1268 [2015]; Matter of Alexander G. [Tatiana G], 93 AD3d 904, 905 [2012]). “Notably, a finding of neglect does not require actual injury or impairment, but only an imminent threat that such injury or impairment may result, which can be established through a single incident or circumstance” (Matter of Heaven H. [Linda H.], 121 AD3d 1199, 1199 [2014] [internal quotation marks, brackets and citations omitted]; see Matter of Emmett RR. [Scott RR.], 134 AD3d 1189, 1190-1191 [2015]).

Here, the grandparents, a Schuyler County Sheriffs Department deputy, a State Trooper and caseworkers from two local social services agencies testified that Dylynn — and, to a lesser extent, Deborah — alleged that respondent had physically abused them. Although some of the statements made by the children — such as Dylynn’s assertion that respondent “punched and hit” them “all of the time” wherever he could with both an opened hand and a closed fist — indeed were general in nature, Dylynn also described a specific incident to investigating personnel where respondent put him in a headlock and tried to choke him. In this regard, “it is well settled that a child’s out-of-court statement of abuse or neglect may be admitted in a Family Ct Act article 10 proceeding provided it is corroborated by any other evidence tending to support its reliability” (Matter of Kimberly Z. [Jason Z.], 88 AD3d 1181, 1182 [2011] [internal quotation marks, brackets and citations omitted]; see Family Ct Act § 1046 [a] [vi]; Matter of Branden P. [Corey P.], 90 AD3d 1186, 1188 [2011]). While the mere repetition of an accusation by a child is insufficient to corroborate the child’s prior account of abuse or neglect (see Matter of Cadence GG. [Lindsay II.], 124 AD3d 952, 953-954 [2015]; Matter of Kimberly CC. v Gerry CC., 86 AD3d 728, 730 [2011]), “[a] relatively low degree of corroborative evidence is sufficient to meet this threshold, and the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record” (Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1182 [internal quotation marks and citations omitted]; see Matter of Olivia C. [Scott E.], 97 AD3d 910, 912 [2012], lv denied 19 NY3d 814 [2012]).

Here, the children’s grandmother testified as to an incident that occurred in January 2013 when respondent placed Dylynn *1163 in a headlock. 3 Specifically, the grandmother testified that respondent and Dylynn were “hollering at” one another when respondent took a step toward the child, in response to which Dylynn “put his hands up to protect himself.” The grandmother went on to state, “[The] next thing I knew Dylynn was down on the floor with his feet and his hands behind [him]”; respondent had “[o]ne arm around [Dylynn’s] neck” and the other arm around the child’s body, and the grandmother heard respondent say that “he would end up killing [Dylynn] if [Dylynn] didn’t shut up.” The incident ended after the children’s mother “beat[ ] on [respondent’s] back to get him off of Dylynn.” This incident also was witnessed by the children’s grandfather, who stated that respondent “[held Dylynn] down on the floor beating on him.” When the children’s mother intervened, respondent “hit her too . . . because [she] was interfering.”

The children’s grandfather also testified as to additional incidents that occurred within respondent’s household, noting that “there was . . . a lot of abuse in the home” during the time that he and his wife were living there. According to the grandfather, respondent was particularly abusive toward Dylynn, stating, “When Dylynn opened his mouth or tried to talk, ...

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Bluebook (online)
136 A.D.3d 1160, 26 N.Y.S.3d 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-dylynn-v-nyappdiv-2016.