Opinion
2012-11-29
In re MIA B., and Another, Children Under The Age of Eighteen Years, etc., Brandy R., Respondent–Appellant, Administration for Children's Services, Petitioner–Respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the children.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, ROMÁN, GISCHE, JJ.
Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about April 25, 2012, which, after a fact-finding determination that respondent mother had neglected one of her children by inflicting excessive corporal punishment and derivatively neglected the other child, placed the children with petitioner Administration for Children's Services, and, inter alia, continued suspension of her visitation with the children, unanimously affirmed, without costs.
The findings of neglect were supported by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i]; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 [1985] ). The record shows that respondent neglected the older child by inflicting excessive corporal punishment upon her ( seeFamily Ct. Act § 1012[f][i][B]; see also e.g. Matter of Joseph C. [Anthony C.], 88 A.D.3d 478, 479, 931 N.Y.S.2d 44 [1st Dept.2011] ), as evidenced by the hospital records and oral report transmittals documenting the 22–month old infant's extensive bruising on the legs, buttocks, elbow, and lumbar area, all of which were in various stages of healing. Respondent's sister testified that after observing the bruises, she confronted respondent, who stated, “[T]hese are my kids and I raise them the way I want. If they act up[,] I'm going to hit them.” Under this scenario, the court properly inferred that respondent had implicitly admitted to causing the injuries, and her failure to testify and otherwise explain the statement permitted the court to draw the strongest possible negative inference against her ( see Matter of Eugene L. [Julianna H.], 83 A.D.3d 490, 921 N.Y.S.2d 61 [1st Dept.2011];Matter of Kazmir K., 63 A.D.3d 522, 523, 882 N.Y.S.2d 402 [1st Dept.2009] ). The Family Court was in the best position to observe and assess witness demeanor, and its credibility determinations are entitled to deference ( see Matter of Jared S. (Monet S.), 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept.2010],lv. denied16 N.Y.3d 705, 2011 WL 589734 [2011] ) and are supported by the record herein. Moreover, a derivative finding as to the younger child was appropriate, as respondent's infliction of excessive corporal punishment on a 22–month old “demonstrated such an impaired level of parental judgment as to create a substantial risk of harm for any child in [her] care” ( see Matter of Joshua R., 47 A.D.3d 465, 466, 849 N.Y.S.2d 246 [1st Dept.],lv. denied11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008] ).
The court was well within its discretion to disbelieve respondent's subsequent explanation to the agency's caseworker that she had not been present in the home for three days leading up to the older child's most recent injuries, and that her mother was the children's primary caretaker and, thus, the likely culprit. The caseworker further testified that respondent admitted that she knew of the grandmother's history of child mistreatment and claimed that the grandmother had not taken her medication for bipolar disorder for the previous month. Thus, assuming the veracity of respondent's claims, she had to have known or should have known about the neglect, since the various stages of healing of the child's injuries indicated neglect over a prolonged period of time, yet she failed to act as a reasonably prudent parent to protect the children ( see e.g. Matter of Rayshawn R., 309 A.D.2d 681, 682, 765 N.Y.S.2d 872 [1st Dept.2003];Matter of Eric J., 223 A.D.2d 412, 413, 636 N.Y.S.2d 762 [1st Dept.1996] ).
In addition, respondent's argument that the court should not have granted her application to proceed pro se at the fact-finding and dispositional hearings is without merit, since the record shows that the court conducted a searching inquiry to assure that she knowingly, intelligently, and voluntarily waived her right to counsel ( see Matter of Jetter v. Jetter, 43 A.D.3d 821, 822, 844 N.Y.S.2d 322 [2nd Dept.2007] ). There is nothing in the record indicating that she was not competent to make such a decision ( see Matter of Emma L., 35 A.D.3d 250, 252, 826 N.Y.S.2d 52 [1st Dept.2006],lv. dismissed, denied8 N.Y.3d 904, 834 N.Y.S.2d 76, 865 N.E.2d 1242 [2007] ).
We further find that the court's suspension of respondent's supervised visitation was appropriate, given her refusal to undergo a mental health evaluation and other services, as well as her erratic behavior, including an attempt to take the children from the foster mother at her last scheduled visit ( see e.g. Matter of Cheyenne S., 11 A.D.3d 362, 782 N.Y.S.2d 746 [1st Dept.2004] ).
We have considered respondent's remaining contentions and find them unavailing.