Admin. for Children's Servs. v. Benellie R. (In re Zaire D.)

• Decision Date: 20 December 2011
• Citation: 935 N.Y.S.2d 581,2011 N.Y. Slip Op. 09321,90 A.D.3d 923
• Parties: In the Matter of ZAIRE D. (Anonymous).Administration for Children's Services, petitioner-respondent;Benellie R. (Anonymous), appellant, et al., respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09321

90 A.D.3d 923

935 N.Y.S.2d 581

In the Matter of ZAIRE D. (Anonymous).Administration for Children's Services, petitioner-respondent;Benellie R. (Anonymous), appellant, et al., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 20, 2011.

Michael A. Fiechter, Bellmore, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Susan B. Eisner of counsel), for petitioner-respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan Clement of counsel), attorney for the child.WILLIAM F. MASTRO, A.P.J., L. PRISCILLA HALL, SANDRA L. SGROI and JEFFREY A. COHEN, JJ.

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition (one paper) of the Family Court, Kings County (Danoff, J.), dated January 5, 2011, as, after fact-finding and dispositional hearings, found that she had neglected the subject child, and placed the child in the custody of the New York City Commissioner of Social Services.

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the mother's contention, the Family Court's determination that she regularly used marijuana, and committed acts of domestic violence against the father while the father was holding the child in his arms, is supported by a preponderance of the evidence ( see Family Ct. Act § 1046[b][i] ). This evidence was sufficient to support the Family Court's finding that the mother neglected the child ( see Family Ct. Act § 1012[f][i][B]; § 1046[a] [iii]; Matter of Ajay Sumert D. [ Vijay Anand D.], 87 A.D.3d 637, 638, 928 N.Y.S.2d 471, lv. denied 17 N.Y.3d 717, 2011 N.Y. Slip Op. 90180, 2011 WL 5829375 [2011]; Matter of Ndeye D. [ Benjamin D.], 85 A.D.3d 1026, 1027, 926 N.Y.S.2d 119; Matter of Kiara C. [ David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566; Matter of Gregory S., 39 A.D.3d 552, 831 N.Y.S.2d 726; Matter of Michelle L., 24 A.D.3d 443, 444, 805 N.Y.S.2d 420; Matter of Ayana Jean L., 23 A.D.3d 472, 472–473, 808 N.Y.S.2d 104; Matter of Aminat O., 20 A.D.3d 480, 481, 797 N.Y.S.2d 767; Matter of Sade W., 286 A.D.2d 770, 771, 730 N.Y.S.2d 721). Additionally, the Family Court providently exercised its discretion in drawing a negative inference against the mother for her failure to testify at the hearing ( see Matter of Tajani B., 49 A.D.3d 876, 877, 854 N.Y.S.2d 518; Matter of Karen Patricia G., 44 A.D.3d 658, 660, 843 N.Y.S.2d 360; Matter of Christopher L., 19 A.D.3d 597, 598, 797 N.Y.S.2d 535).

There is no basis in the record to overturn the Family Court's credibility determination regarding the father's uncontroverted testimony, which is “entitled to considerable deference on appeal” ( Matter of Sadiq H. [ Karl H.], 81 A.D.3d 647, 647, 915 N.Y.S.2d 867; see Matter of Andrew B. [ Deborah B.], 73 A.D.3d 1036, 900 N.Y.S.2d 661; Matter of Samantha B., 5 A.D.3d 590, 591, 773 N.Y.S.2d 450). The fact that the father was seeking custody of the child did not require wholesale rejection of his testimony, which implicated him, as well as the mother, in drug use ( see Matter of Angelyna G., 46 A.D.3d 304, 304, 847 N.Y.S.2d 89).

The Family Court providently exercised its discretion regarding the “scope and manner” of cross-examination of the father ( Salm v. Moses, 13 N.Y.3d 816, 817, 890 N.Y.S.2d 385, 918 N.E.2d 897; see Bernstein v. Bodean, 53 N.Y.2d 520, 529, 443 N.Y.S.2d 49, 426 N.E.2d 741; Hoberg v. Shree Granesh, LLC, 85 A.D.3d 965, 967, 926 N.Y.S.2d 578) by precluding certain questions that were “unnecessarily repetitive” or argumentative ( Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293; see Bernstein v. Bodean, 53 N.Y.2d at 529, 443 N.Y.S.2d 49, 426 N.E.2d 741; People v. Harrison, 151 A.D.2d 778, 779, 543 N.Y.S.2d 108).

While the mother is correct that the Family Court erred in admitting into evidence the Domestic Incident Report containing the father's out-of-court statements made to the police concerning the domestic dispute ( see Matter of Imani B., 27 A.D.3d 645, 646, 811...