State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 521076 

521189

________________________________

In the Matter of CORI XX.,

Alleged to be a Neglected

Child.

OTSEGO COUNTY DEPARTMENT OF MEMORANDUM AND ORDER

SOCIAL SERVICES,

Respondent;

MICHAEL XX.,

Appellant.

________________________________

Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Kelly L. Egan of counsel), for appellant.

Steven Ratner, Otsego County Department of Social Services,

Cooperstown, for Otsego County Department of Social Services,

respondent.

Christine A. McCue, Central Bridge, attorney for the child.

Monica A. Carrascoso, Cooperstown, for Katherine XX. 

__________

Lynch, J.

Appeals from two orders of the Family Court of Otsego

County (Burns, J.), entered May 4, 2015 and May 26, 2015, which

granted petitioner's application, in a proceeding pursuant to

Family Ct Act article 10, to adjudicate respondent's child to be

neglected.
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Respondent is the father of a daughter (born in 2000). In

June 2014, petitioner filed a neglect petition resulting from a

March 7, 2014 domestic dispute. After a fact-finding hearing,

Family Court found that respondent was not credible, that he

engaged in conduct that created an unreasonable risk of harm to

the child and adjudged the child to be neglected by respondent. 

At the dispositional hearing, respondent consented to the

continued placement of the child with the child's mother, coupled

with therapeutic visitation for respondent. Family Court issued

an order to that effect. Respondent now appeals from both the

finding of neglect and the dispostional order. 

"[A] party seeking to establish neglect must show, by a

preponderance of the evidence, first, that a child's physical, 

mental or emotional condition has been impaired or is in imminent

danger of becoming impaired and second, that the actual or

threatened harm to the child is a consequence of the failure of

the parent or the caretaker to exercise a minium degree of care

in providing the child with proper supervision or guardianship"

(Nicholson v Scoppetta, 3 NY3d 357, 368 [2004] [internal citation

omitted]; see Matter of Alyssa OO. [Andrew PP.], 68 AD3d 1158,

1159 [2009]). A single incident may constitute neglect (see

Matter of Emmett RR. [Scott RR.], 134 AD3d 1189, 1191 [2015]). 

"When determining whether a parent or guardian has failed to

exercise a minimum degree of care, the relevant inquiry is

whether a reasonable and prudent parent would have so acted, or

failed to act, under the circumstances" (id. [internal quotation

marks and citation omitted]; see Matter of Heaven H. [Linda H.],

121 AD3d 1199, 1199-1200 [2014]). "Family Court's findings and

credibility determinations are accorded great deference and will

not be disturbed unless they lack a sound and substantial basis

in the record" (Matter of Trimble v Trimble, 125 AD3d 1153, 1154

[2015] [internal quotation marks and citation omitted]). 

In our view, there was a sound and substantial basis in the

record for Family Court to conclude that respondent's acts of

domestic violence on March 7, 2014 constituted neglect. In her

testimony, the child's mother described a harrowing scene in

their home, during which respondent, who had been drinking,

berated her for several hours. The argument escalated into a
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physical altercation, during which respondent tried to rape her,

struck her repeatedly in the head and poured wine over her. Up

to this point, the child had been in her bedroom at the other end

of the mobile home. The mother ran to the child's room, followed

by respondent, and asked the child to call 911. Respondent

interceded by grabbing the child's hand and shoving her against

the wall, taking away the phone. Both the mother and the child

ran outside the home, pursued by respondent who grabbed the

mother by the hair and tried to drag her back. Respondent then

chased the child, who ran back into the home through the front

door, out through the back door and across the lawn to a

neighbor's house. The mother joined her there and was able to

call the police; respondent left in his truck and was later

arrested. The mother sought medical treatment and was diagnosed

with a concussion. 

Petitioner's caseworker testified that she interviewed the

child, whose description of the event comported with the

mother's. The child also explained that, once they were outside,

she could hear her mother "whimpering" as she struggled with

respondent. The child also reported that this was the first time

that she had seen a fight between her mother and respondent

become physical, that she was scared and crying during the

incident and that she had bruising on her wrists in the area

where respondent had grabbed her as she tried to make the

telephone call. 

While respondent gave a vastly different version of the

event, exonerating his own actions, Family Court deemed his

testimony less than credible. In so holding, Family Court duly

noted respondent's disdainful demeanor and attitude during the

course of the fact–finding hearing. Although respondent argues

on appeal that Family Court did not give sufficient weight to his

testimony, we defer to Family Court's assessments with regard to

credibility of the witnesses and the reliability of the

corroborative evidence (see Matter of Stephanie RR. [Pedro RR.],

140 AD3d 1237, 1240 [2016]). Further, the evidence demonstrating

that the child suffered bruising, was frightened and forced to

flee from her home was unquestionably sufficient to support

Family Court's finding of neglect (see Matter of Michael WW., 20
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521189 

AD3d 609, 611-612 [2005]; Matter of Tami G., 209 AD2d 869, 870

[1994], lv denied 85 NY2d 804 [1995]). 

Finally, we are unpersuaded by respondent's contention that

he did not receive the effective assistance of counsel. 

Respondent's argument is keyed into counsel's purported failure

to ascertain whether the caseworker had a conflict of interest. 

As Family Court duly noted, however, the fact that the caseworker

graduated from high school with the mother's older daughter 15

years earlier, does not, without more, present a conflict of

interest. As for the receipt into evidence of the caseworker's

notes, respondent's counsel requested – and Family Court agreed –

to review only the notes of interviews with family members, and

we discern no basis to find that the court did not honor this

request. Counsel conducted thorough direct and crossexaminations and asserted appropriate objections during the factfinding hearing. Under the circumstances, and viewing the record

as a whole, we find that respondent received meaningful

representation and did not suffer any prejudice as a result of

counsel's performance (see Matter of Julian P. [Colleen Q.], 129

AD3d 1222, 1224 [2015]; Matter of Robinson v Bick, 123 AD3d 1242,

1243 [2014]). 

McCarthy, J.P., Garry, Devine and Clark, JJ., concur.

ORDERED that the orders are affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court