SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

158 

CAF 11-00694 

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ. 

 

IN THE MATTER OF JAYDEN B. AND NATHAN F. 

-------------------------------------------- 

OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-APPELLANT; 

 

ERICA R., RESPONDENT-RESPONDENT.

NELSON LAW FIRM, MEXICO (ANNALISE M. DYKAS OF COUNSEL), FOR

PETITIONER-APPELLANT. 

COURTNEY S. RADICK, ATTORNEY FOR THE CHILD, OSWEGO, FOR JAYDEN B. 

STEPHANIE N. DAVIS, ATTORNEY FOR THE CHILD, OSWEGO, FOR NATHAN F.

 

Appeal from an order of the Family Court, Oswego County (Kimberly

M. Seager, J.), entered March 24, 2011 in a proceeding pursuant to

Family Court Act article 10. The order dismissed the petition. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the petition is

granted, and the matter is remitted to Family Court, Oswego County,

for further proceedings in accordance with the following Memorandum: 

We conclude that Family Court erred in determining that petitioner

failed to prove by a preponderance of the evidence that the children

who are the subject of this proceeding are neglected children based

upon, inter alia, domestic violence between respondent and the mother

of the children and in therefore dismissing the petition herein (see

Family Ct Act § 1046 [a]). We note at the outset that the respective

Attorneys for the Children did not take an appeal from the order, and

thus to the extent that their briefs raise contentions not raised by

petitioner, they have not been considered (see Matter of Sharyn PP. v

Richard QQ., 83 AD3d 1140, 1143-1144). 

 Upon our review of the record, we conclude that petitioner

established by a preponderance of the evidence that the children were

in imminent danger of emotional impairment based upon the alleged

incidents of domestic violence between the children’s mother and

respondent (see Family Ct Act § 1012 [f] [i] [B]; Matter of Afton C.,

17 NY3d 1, 8-9). We note that, in connection with her admission in

the separate neglect proceeding brought against her, the mother

admitted that she and respondent “had several disagreements and

arguments . . . in the presence of the children and [that] sometimes

[the children] were afraid.” Respondent failed to appear at the

instant fact-finding hearing, and thus we draw the “strongest
-2- 158 

CAF 11-00694 

inference [against her] that the opposing evidence permits” based upon

her failure to testify at the hearing (Matter of Nassau County Dept.

of Social Servs. v Denise J., 87 NY2d 73, 79; see Matter of Kennedie

M., 89 AD3d 1544, 1545). 

According to the evidence presented at the fact-finding hearing,

when the police responded to the residence on a specified date, both

the mother and respondent admitted that they had been engaged in a

loud argument in the living room, during which they struck each other. 

The police officer observed a scratch on the mother’s neck, which the

mother admitted she received while she and respondent were “fighting.” 

The police officer further observed that the one-year-old child

(younger child) was crying in a bedroom, and he described the child as

“shook up” and “scared.” We conclude that the younger child’s

proximity to the physical and verbal fighting that occurred in the

living room, together with the evidence of a pattern of ongoing

domestic violence in the home, placed him in imminent risk of

emotional harm (see Kennedie M., 89 AD3d at 1545; cf. Matter of Larry

O., 13 AD3d 633). 

Although the hearing court’s determinations are entitled to great

deference (see generally Matter of Syira W., 78 AD3d 1552, 1553), we

conclude that the court’s determination that the statements of the

five-year-old child (older child) were not corroborated is not

supported by a sound and substantial basis in the record. 

“Corroboration, for purposes of article 10 proceedings, is defined to

mean ‘[a]ny other evidence tending to support the reliability of the

previous statements’ ” of the child (Matter of Christina F., 74 NY2d

532, 536), and here we conclude that the older child’s statements were

sufficiently corroborated. 

The caseworker for Child Protective Services testified at the

fact-finding hearing that the body language of the older child changed

when he spoke about his mother and respondent, and that he refused to

talk to her while he was at his mother’s house. While at his father’s

house, however, the older child explained to the caseworker that he

did not want to speak with her at his mother’s house because his

mother repeatedly entered and then left the room. He told the

caseworker that his mother and respondent fought often; that

respondent had locked them out of the house; and that he was afraid of

respondent. He demonstrated with the use of two “Barbie” dolls a

physical fight that involved hair-pulling and pushing, which ended

with the intervention of a male doll, who represented a police

officer. Furthermore, the evidence at the fact-finding hearing

established that the police responded to the home of respondent and

the mother on several occasions for reports of domestic violence. A

neighbor testified that she heard loud fighting between respondent and

the mother on a weekly basis and that she observed the police

responding to those fights at least once per month. The neighbor

further testified that she had seen that the mother had been locked

out of the house by respondent on more than one occasion. The child

care provider for the children testified that the older child told her

on several occasions that respondent hurt his mother, and the child

care provider in fact observed a large bruise on the mother’s face. 
-3- 158 

CAF 11-00694 

When she questioned the mother about the bruise, the mother explained

that it had happened in a bar, but after his mother left the house the

older child told the child care provider that “[respondent] did it.” 

We therefore further conclude that the ongoing pattern of domestic

violence also placed the older child in imminent risk of emotional

harm, thus compelling the conclusion that both children are neglected

based upon the actions of respondent (see Kennedie M., 89 AD3d at

1545). We thus reverse the order, grant the petition, and remit the

matter to Family Court for a dispositional hearing. 

Entered: January 31, 2012 Frances E. Cafarell

Clerk of the Court