In re J.

• Decision Date: 17 May 2011
• Parties: In re NAOMI J., and Another, Children Under the Age of Eighteen Years, etc.,Damon R., Respondent–Appellant,The Administration for Children's Services, Petitioner–Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 594

923 N.Y.S.2d 467

2011 N.Y. Slip Op. 04108

In re NAOMI J., and Another, Children Under the Age of Eighteen Years, etc.,Damon R., Respondent–Appellant,The Administration for Children's Services, Petitioner–Respondent.

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

May 17, 2011.

Michael S. Bromberg, Sag Harbor, for appellant.Michael A. Cardozo, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.Tamara A. Steckler, The Legal Aid Society, New York (Amy Hausknecht of counsel), attorney for the child Naomi J.TOM, J.P., SAXE, CATTERSON, MOSKOWITZ, MANZANET–DANIELS, JJ.

Order of disposition, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about June 12, 2009, which, upon a finding that respondent father neglected Naomi J., and derivatively neglected Damon R. Jr. (a/k/a Damien R.), placed Naomi J. in the custody of the Commissioner of Social Services until completion of the next permanency hearing and released Damon R. Jr. to the custody of non-respondent mother, with supervision by petitioner Administration for Children's Services until February 19, 2010, unanimously affirmed, without costs. Appeals from order, same court and Justice, entered on or about August 5, 2008, which granted the application of respondent father and non-respondent mother for the return of Damon R. Jr. pending a final order of disposition, unanimously dismissed, without costs, as moot.

The finding of neglect is supported by a preponderance of the evidence (Family Ct. Act § 1046[b][i] ) showing that respondent inflicted excessive corporal punishment upon his daughter Naomi (Family Ct. Act § 1012[f][i] [B] ), by beating her and leaving bruises on her arm and under her eye ( see Matter of Jazmyn R. [Luceita F.], 67 A.D.3d 495, 889 N.Y.S.2d 30 [2009] ). The out-of-court statement of the child to her teacher was corroborated by the teacher's observation of the bruises on the child's arm and face ( see Matter of Nicole V., 71 N.Y.2d 112, 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987]; Jazmyn R., 67 A.D.3d at 495, 889 N.Y.S.2d 30).

Respondent's use of excessive corporal punishment against Naomi supports the finding of derivative neglect as to Damon R. Jr. ( see Family Ct. Act § 1046[a][i]; Matter of Deivi R. [Marcos R.], 68 A.D.3d 498, 499, 890 N.Y.S.2d 52 [2009] ).