State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 18, 2016 518252 

________________________________

In the Matter of DYLYNN V. and

Another, Alleged to be 

Neglected Children.

SCHUYLER COUNTY DEPARTMENT OF

SOCIAL SERVICES, MEMORANDUM AND ORDER

Respondent;

BRADLEY W.,

Appellant.

________________________________

Calendar Date: January 11, 2016

Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Francisco P. Berry, Ithaca, for appellant.

Kristin E. Hazlitt, Schuyler County Department of Social

Services, Watkins Glen, for respondent.

Daniel J. Fitzsimmons, Watkins Glen, attorney for the

children.

__________

Egan Jr., J.

Appeal from an order of the Family Court of Schuyler County

(Morris, J.), entered December 18, 2013, which, among other

things, granted petitioner's application, in a proceeding

pursuant to Family Ct Act article 10, to adjudicate the subject

children to be neglected.

In July 2013, petitioner investigated allegations of

neglect made against respondent by his stepson, Dylynn V. (born
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in 1999), wherein Dylynn alleged that respondent physically

abused him, his sister, Deborah V. (born in 2001), and their

mother, to whom respondent then was married. The investigation

was prompted by a telephone call that Dylynn, with the assistance

of his maternal grandfather and the grandfather's wife,1 had made

to the Schuyler County Sheriff's Department and an interview of

the child by a member of the State Police, during the course of

which Dylynn revealed that he and his sister routinely were being

hit by respondent and, further, described a specific incident in

which respondent choked him while restraining him in a headlock

on the floor. Following an investigation, petitioner commenced

this neglect proceeding against respondent and obtained a

temporary order of protection in favor of the children.2 A factfinding hearing ensued, at the conclusion of which Family Court

found that respondent had neglected both Dylynn and Deborah and,

further, that respondent had derivatively neglected Deborah. 

Following a dispositional hearing, at which it was revealed that

Dylynn, Deborah and their mother had relocated out of state,

Family Court issued an order of protection in favor of the

children, which remained in effect until September 1, 2015. This

appeal by respondent ensued.

We affirm. Preliminarily, although the combined

dispositional order/order of protection expired by its own terms

in September 2015, this appeal from Family Court's fact-finding

order (see Family Ct Act § 1112 [a]) is not moot, as the finding

of neglect and derivative neglect against respondent "may

adversely affect [him] in future matters" (Matter of Kali-Ann E.,

27 AD3d 796, 797 n [2006], lv denied 7 NY3d 704 [2006]). 

Additionally, to the extent that respondent's attorney suggested

at oral argument that it was inappropriate for petitioner to

continue to pursue this neglect proceeding against respondent

once he and the children's mother separated, suffice it to say

1 Although the grandfather's wife is a step-grandparent to

the subject children, for purposes of this decision, she will be

referred to as the children's grandmother.

2 Petitioner also apparently filed a neglect petition

against the mother, which thereafter was "settled."
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that we find this argument to be entirely unpersuasive. Simply

put, a parent or other person legally responsible for a child's

care cannot avoid the consequences of his or her prior actions by

subsequently electing to vacate the premises or otherwise sever

ties with the child's remaining parent.

Turning to the merits, "[a] finding of neglect will be

sustained if [the] petitioner demonstrated, by a preponderance of

the evidence, that the child[ren's] physical, mental or emotional

condition was harmed or is in imminent danger of such harm as a

result of the parent's [or caretaker's] failure to exercise [the]

minimum degree of care that a reasonably prudent person would

have used under the circumstances" (Matter of Marcus JJ. [Robin

JJ.], 135 AD3d 1002, ___, 22 NYS3d 661, 662 [2016]; see Matter of

Hailey XX. [Angel XX.], 127 AD3d 1266, 1268 [2015]; Matter of

Alexander G. [Tatiana G.], 93 AD3d 904, 905 [2012]). "Notably, a

finding of neglect does not require actual injury or impairment,

but only an imminent threat that such injury or impairment may

result, which can be established through a single incident or

circumstance" (Matter of Heaven H. [Linda H.], 121 AD3d 1199,

1199 [2014] [internal quotation marks, brackets and citations

omitted]; see Matter of Emmett RR. [Scott RR.], 134 AD3d 1189,

1190-1191 [2015]).

Here, the grandparents, a Schuyler County Sheriff's

Department deputy, a State Trooper and caseworkers from two local

social services agencies testified that Dylynn – and, to a lesser

extent, Deborah – alleged that respondent had physically abused

them. Although some of the statements made by the children –

such as Dylynn's assertion that respondent "punched and hit" them

"all of the time" wherever he could with both an opened hand and

a closed fist – indeed were general in nature, Dylynn also

described a specific incident to investigating personnel where

respondent put him in a headlock and tried to choke him. In this

regard, "it is well settled that a child's out-of-court statement

of abuse or neglect may be admitted in a Family Ct Act article 10

proceeding provided it is corroborated by any other evidence

tending to support its reliability" (Matter of Kimberly Z. [Jason

Z.], 88 AD3d 1181, 1182 [2011] [internal quotation marks,

brackets and citations omitted]; see Family Ct Act § 1046 [a]

[vi]; Matter of Branden P. [Corey P.], 90 AD3d 1186, 1188
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[2011]). While the mere repetition of an accusation by a child

is insufficient to corroborate the child's prior account of abuse

or neglect (see Matter of Cadence GG. [Lindsay II.], 124 AD3d

952, 953-954 [2015]; Matter of Kimberly CC. v Gerry CC., 86 AD3d

728, 730 [2011]), "[a] relatively low degree of corroborative

evidence is sufficient to meet this threshold, and the

reliability of the corroboration, as well as issues of

credibility, are matters entrusted to the sound discretion of

Family Court and will not be disturbed unless clearly unsupported

by the record" (Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1182

[internal quotation marks and citations omitted]; see Matter of

Olivia C. [Scott E.], 97 AD3d 910, 912 [2012], lv denied 19 NY3d

814 [2012]).

Here, the children's grandmother testified as to an

incident that occurred in January 2013 when respondent placed

Dylynn in a headlock.3 Specifically, the grandmother testified

that respondent and Dylynn were "hollering at" one another when

respondent took a step toward the child, in response to which

Dylynn "put his hands up to protect himself." The grandmother

went on to state, "[The] next thing I knew Dylynn was down on the

floor with his feet and his hands behind [him]"; respondent had

"[o]ne arm around [Dylynn's] neck" and the other arm around the

child's body, and the grandmother heard respondent say that "he

would end up killing [Dylynn] if [Dylynn] didn't shut up." The

incident ended after the children's mother "beat[] on

[respondent's] back to get him off of Dylynn." This incident

also was witnessed by the children's grandfather, who stated that

respondent "[held Dylynn] down on the floor beating on him." 

When the children's mother intervened, respondent "hit her too 

. . . because [she] was interfering."

The children's grandfather also testified as to additional

incidents that occurred within respondent's household, noting

that "there was . . . a lot of abuse in the home" during the time

that he and his wife were living there. According to the

3 The grandparents lived with the children, their mother

and respondent for approximately one month beginning in January

2013.
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grandfather, respondent was particularly abusive toward Dylynn,

stating, "When Dylynn opened his mouth or tried to talk, . . . he

would get busted in the mouth or get thrown to the floor and told

to keep his mouth shut." The grandfather witnessed incidents

such as this "about four times" during the month that he resided

in respondent's household. The grandfather also described a

particular incident when respondent pinned Dylynn against a wall

in the family's residence – holding the child near his upper

chest and neck "so he couldn't move" – and "hitting on him and so

forth." Again, the incident ended when the children's mother

intervened and told respondent to stop. In addition to the

foregoing, the grandfather also testified that respondent

"disciplined [Deborah] quite a bit" by spanking her "[o]n the

bottom end" in a manner that the grandfather deemed to be beyond

what was "appropriate."

"A single incident of excessive corporal punishment may

form the basis for a neglect finding" (Matter of Dawn M. [Michael

M.], 134 AD3d 1197, 1197 [2015] [citation omitted]; see Matter of

Benjamin VV. [Larry VV.], 92 AD3d 1107, 1108 [2012]; Matter of

Steven M. [Stephvon O.], 88 AD3d 1099, 1101 [2011]) and, to our

analysis, the grandparents' sworn testimony is more than

sufficient to corroborate – at the very least – Dylynn's out-ofcourt statement regarding the "headlock" incident. Accordingly,

we find ample support for Family Court's finding of neglect as to

Dylynn (see Matter of Dylan TT. [Kenneth UU.], 75 AD3d 783, 783-

784 [2010]; Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 680

[2010]). As for Deborah, the child informed one of petitioner's

caseworkers that respondent "hit all of them . . . typically . .

. on the back, bottom and legs." According to Deborah, although

respondent "only ever used his hands" for hitting and spanking,

he "had threatened to use a paddle or a belt." Additionally, the

child told the caseworker that respondent "hits hard" and that,

when respondent did spank them, "he [would] hit them over and

over again." In our view, Deborah's statements were sufficiently

corroborated by Dylynn's substantially similar allegations of

physical abuse (see Matter of Dawn M. [Michael M.], 134 AD3d at

1198; Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d at 680), as

well as the grandfather's sworn testimony regarding the manner in

and frequency with which respondent spanked Deborah, thereby

supporting Family Court's finding of neglect as to her. Finally,
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as respondent's conduct with respect to Dylynn reflected "such an

impaired level of parental judgment as to create a substantial

risk of harm for any child in his care" (Matter of Dylan TT.

[Kenneth UU.], 75 AD3d at 784 [internal quotation marks, brackets

and citation omitted]; accord Matter of Joseph RR. [Lynn TT.], 86

AD3d 723, 725 [2011]), we find ample evidence to support Family

Court's additional finding of derivative neglect as to Deborah. 

Respondent's remaining arguments, to the extent not specifically

addressed, have been examined and found to be lacking in merit.

McCarthy, J.P., Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court