Matter of Angelica A. (Carlos A.)

[*1] Matter of Angelica A. (Carlos A.) 2017 NY Slip Op 51108(U) Decided on September 6, 2017 Family Court, Bronx County Cooper, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 6, 2017
Family Court, Bronx County

In the Matter of Angelica A. A Child Under Eighteen Years of Age Alleged to be Neglected by

against

Carlos A., Respondent.



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Counsel Appearances:

New York City Administration for Children's Services 900 Sheridan Avenue Bronx, New York 10451 By: Special Assistant Corporation Counsel Hyun- Jung Kim, Esq.

Jessica Brown, Esq.

Attorney for Respondent930 Grand Concourse, 1B Bronx, New York 10451

Legal Aid Society- Juvenile Rights Division Attorney for the Child Angelica A. 900 Sheridan Avenue Bronx, New York 10451 By: Jadera Ramirez-Garcia, Esq.
Sarah P. Cooper, J.

DECISION AFTER FACT-FINDING

PROCEDURAL HISTORY

On October 26, 2016, the Commissioner of Administration for Children's Services [hereinafter referred to as the "Petitioner" or "ACS"] filed a petition against Carlos A. [hereinafter referred to as the "Respondent"] alleging that he neglected his daughter Angelica A. (DOB: xx-xx-xxxx) [hereinafter referred to as the "Child"] within the meaning of section 1012(f)(i)(b) of the New York State Family Court Act by inflicting excessive corporal punishment on her on October 20, 2016.

On July 20, 2017, the fact-finding hearing commenced with the testimony of ACS caseworker Stanislav Krol [hereinafter referred to as "CPS Krol"]. The Court accepted into evidence, as Petitioner's 1 through 6 respectively, a) the Child's birth certificate, b) certified and delegated medical records relating to the Child from Bronx Lebanon Hospital Center, c) certified [*2]and delegated medical records relating to the Child from Montefiore Health Center, d) an oral transmittal report dated October 20, 2016, e) an oral transmittal report dated October 21, 2016 and f) seven photos taken of the Child by CPS Krol. The Petitioner then rested. On August 25, 2017, the fact-finding continued with the testimony of the Respondent. The Respondent then rested and the attorney for the child declined to call any witnesses. After the close of testimony, each party gave a summation. The Petitioner's attorney, as well as the attorney for the Child, asked that the Court enter a finding of neglect against the Respondent based on his excessive corporal punishment of the Child and the Respondent asked that the petition be dismissed. The Court issued an oral decision on the record, indicating a written decision would follow, finding that the Respondent neglected the Child pursuant to Section 1012(f)(i)(b) of the New York State Family Court Act by using excessive corporal punishment on the Child. The case was adjourned to September 6, 2017 for disposition.

LEGAL ANALYSIS AND DISCUSSION

In a child protective proceeding commenced under Article Ten of the Family Court Act, the petitioner bears the burden of proving the allegations in the petition by a preponderance of the evidence (see Family Ct Act § 1046[b][i]; Matter of Tammie Z., 66 NY2d 1,2 [1985]). While the statute does not define the term "preponderance of the evidence," the court is required to determine whether the allegations in the petition are "more probably true than untrue." Matter of Jamie TT., 191 AD2d 132, 134 (3rd Dept 1993). To satisfy their burden, the petitioner may rely upon prior out-of-court statements of the subject children, provided that they are properly corroborated (see Family Ct Act § 1046 [a] [vi]; Matter of Mateo S. [Robin Marie Y.], 118 AD3d 891, 892 [2nd Dept 2014]). The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect. Id. The Family Court has considerable discretion in deciding whether out-of-court statements made by children have been reliably corroborated and whether the record as a whole supports a finding of abuse or neglect (see Matter of Nicole V., 71 NY2d 112, 119, [1987]; Matter of Alexander M. [Benjamin M.], 88 AD3d 794, 795, [2nd 2011]). The New York State Legislature envisioned a broad, flexible standard of corroboration for a child's out-of-court statements. The Court of Appeals had held that corroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability. Matter of Nicole V., 71 NY2d 112, 118 [1987].

Corroboration is defined as any evidence tending to support the child's out-of -court statement (see Family Ct Act § 1046 [a] [vii]). In the present case, the Court finds that the Child's out-of-court statements to CPS Krol are corroborated by a) the deep cut and other cuts and scratches visible behind the Child's ear in the color photographs in evidence as Petitioner's 6, b) the bruising and swelling on the Child's ear in the color photographs in evidence as Petitioner's 6, c) the description of the Child's injuries contained in the medical records in evidence as Petitioner's 2 and 3, d) the testimony of CPS Krol who observed the Child's swollen ring finger, as well as a superficial scratch on the right side of her torso and several quarter to half inch cuts and abrasions on and around her ear and behind her ear , e) the consistency in the Child's statements to CPS Krol and to medical staff on two separate occasions and f) the prior indicated case of the Respondent's use of excessive corporal punishment of the Child. All of these facts are evidence that, under Family Court Act Section 1046(a)(vii), tend to support the Child's out-of-court statements to CPS Krol regarding the Respondent's use of excessive corporal punishment (see for example, Matter of Tyson T. (Latoyer T.), 146 AD3d 669 [1st Dept 2017] [*3]wherein the Court held that the child's out-of-court statements were sufficiently corroborated by the caseworker's testimony as to her observations of his injuries and the photographs depicting them; see also Matter of Emily S. (Jorge S.), 146 AD3d 599 [1st Dept 2017] wherein the Court held that, while repetition is not itself sufficient corroboration, the child's consistent statements to more than one person enhances the credibility of the child's statements).

In cases where the trial court is primarily confronted with issues of credibility, as it is here, its factual findings must be accorded considerable deference on appeal (see Matter of Cheryale B. [Michelle B.], 121 AD3d 976, 977 [2nd Dept 2014]) and shall not be disturbed unless unsupported by the record (see Matter of Elijah J. [Yvonda M.], 105 AD3d 449 [1st Dept 2013]). The Court had ample opportunity to observe the demeanor and credibility of each witness in this case. CPS Krol testified credibly about his involvement in the case, including his discussions with the Child and the Respondent regarding the alleged incident. His testimony, including the Child's out-of-court statements regarding the Respondent's use of corporal punishment, are corroborated by the medical records in evidence as Petitioner's 2 and 3, as well as the photographs in evidence as Petitioner's 6.

Conversely, the Court credits only portions of the Respondent's testimony and finds that other portions of his testimony were self-serving and incredible. The Respondent corroborated that he punched the Child's boyfriend on October 20, 2016, that he grabbed a weapon which he had in his hands during the incident with his daughter, that he was angry and that the Child and her boyfriend were both trying to flee the house. However, the Respondent's testimony regarding what exactly transpired that day contradicts both the statements he made to CPS Krol just days after the incident, as well as the other credible evidence.

Family Court Act § 1012 (f) (i)(b), in pertinent part, defines a "neglected child" as a child less than eighteen years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care ... in providing the child with proper supervision or guardianship." Family Ct Act § §1012(f)(i)(b). A party seeking to establish neglect must show, by a preponderance of the evidence, first that the 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. Nicholson v Scoppetta, 3 NY3d 357 (2004). A finding of neglect does not require actual injury but, rather, "an imminent threat that such injury or impairment may result." Matter of Aiden L., 47 AD3d 1089, 1090 (3rd Dept 2008). The physical "impairment" referred to in FCA §1012(f)(i) involves a lower threshold of resultant harm than the serious physical injury required in abuse cases. Matter of Maroney v. Perales, 102 AD2d 487 (3rd Dept 1984).

Under Family Court Act § 1012 (f) (i)(b), a neglect finding may be made when the respondent fails to exercise a minimum degree of care in providing proper supervision or guardianship "by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment." Family Ct Act § §1012(f)(i)(b). The petitioner is not required to prove a course of conduct, and so, depending on the circumstances, a single incident of excessive corporal punishment may be sufficient to sustain a finding of neglect. Matter of Jayden R. (Jacqueline C.), 134 AD3d 638 (1st Dept 2015).

The present case involves a single incident of excessive corporal punishment on October 20, 2016. The credible evidence before this Court consists of the Child's out-of-court statements [*4]to CPS Krol, the medical records in evidence as Petitioner's 2 and 3, the photographs CPS Krol took of the Child's injuries in evidence as Petitioner's 6, and the testimony of CPS Krol himself regarding his observations of the Child's injuries.

The Child told CPS Krol that on October 20, 2016, she stayed home from school because she was sick and she said that her boyfriend had come over. The Child told the caseworker that she and her boyfriend had sex in her bedroom, that her father came home shortly thereafter and found them in her bedroom partially clothed (she stated that she was wearing a shirt and her boyfriend was wearing boxers) The child stated to the caseworker that the Respondent got angry and punched her and punched her boyfriend. The child stated that the Respondent then left the room only to return with a sword in his hand that was approximately four feet long. The child stated that the Respondent hit her with the handle of the sword on her head and ear as she tried to get away from him. She stated that she tried to leave the home but the Respondent followed her out of their home with the sword in his hand and continued to hit her as she descended down the stairs of the building.

The Child said that she put her hands up to block her head from the Respondent's sword and as a result, she sustained a swelling injury to her ring finger. CPS Krol testified that he observed her swollen ring finger, a superficial scratch on the right side of her torso, and several quarter to half inch cuts and abrasions in and behind her right ear. The Child further told CPS Krol that the Respondent had hit her before and that he had also previously threatened to fracture her ribs. CPS Krol testified that in March 2015, there had been an indicated ACS case regarding the Respondent hitting the Child on the lip causing her lip to swell.

The medical records from Bronx Lebanon Hospital Center, in evidence as Petitioner's 2, establish that on October 20, 2016, the Child was treated at Bronx Lebanon Hospital Center for wounds resulting from the Respondent having attacked her. The medical records indicate that the child sustained wounds to her scalp; hematomas to her ear; and abrasions, lacerations and contusions about her head. The medical records indicate that the Child presented with a cut and a bump on the back of her head; a cut behind her right ear; redness to her right cheek; swelling of her right ring finger and an abrasion on her left hand. The injury to the Child's ear is described as a "right ear hematoma" and a one centimeter cut behind her right ear. The Child is described as having felt dizzy and in pain. The narrative of the Child's explanation for how she sustained the injuries mirrored the statements she made to CPS Krol (and testified to by him) when she described what the Respondent did to her on October 20, 2016.

The medical records from the Montefiore Health Center, in evidence as Petitioner's 3, indicate that the Child was seen at the Montefiore Child Advocacy Clinic on November 8, 2016. The Child disclosed that the Respondent began hitting her at age 12 after he was released from jail. The Child complained of having a headache, feeling dizzy and nauseous since the Respondent attacked her on October 20, 2016. The Child was referred to the Concussion Clinic at Montefiore for follow-up because her symptoms were consistent having post-concussion syndrome. The Child was seen again at Montefiore on November 9, 2016 for a follow up appointment. The Child reported still having some problems with balance, as well as blurry vision, since the Respondent attacked her. The Child reported she sometimes feels dizzy and sometimes feels nauseous. The records indicate that the child has difficulty completely the tandem stance and single leg stance with her eyes closed. The Child was diagnosed as having post-concussion syndrome.

The pictures in evidence as Petitioner's 6 show that the Child's head was bandaged, her [*5]right ear was swollen with red bruising on the front, and the back of her right ear had several scratches, one of which appeared quite deep.

CPS Krol testified that when he spoke to the Respondent about what happened on October 20, 2016 six days after it happened, the Respondent admitted that he hit the Child's boyfriend, that the Child had tried to stop him and that the Respondent had pushed the Child away onto the bed. The Respondent told CPS Krol that he grabbed a ceremonial machete he keeps in the home and he ran out of the house after the Child's boyfriend, chasing him with the machete in his hand down the stairs of the apartment building. The Respondent told CPS Krol that the Child was behind him on the staircase as he was leaving the home, and he turned around and got into a struggle with the Child on the stairs as he tried to get her back into the home. The Respondent indicated that the Child sustained injuries during that struggle.

Significantly, the Respondent's testimony in Court contradicted his out-of-court statements to CPS Krol just days after the incident. The Respondent testified that when he caught the Child and her boyfriend in bed, he punched her boyfriend as her boyfriend was trying to leave the bedroom. The Respondent claimed that the Child jumped on the Respondent's back and the Respondent tried to prevent the Child's boyfriend from leaving by grabbing his clothes. The Respondent claimed that the boyfriend broke free and then turned around and told the Respondent he was going to kill him. The Respondent testified, after the Child's boyfriend threatened him, he grabbed a fishing knife that is two to three feet long and, holding the knife in his right hand with the blade pointed down, he chased the boyfriend out of the home onto the stairs. The Respondent testified that the boyfriend got down the stairs and out of the building, that he didn't want to chase the boyfriend out into the street, so he turned around and went back up the stairs where he ran into the Child who was coming down the stairs. At the time, the Respondent states he was holding the knife blade down, handle up. The Respondent claimed the Child tried to push him out of the way to get past him on the stairs and he "bear-hugged" her with his left arm, while holding the knife in his right hand and attempted to carry her back up the stairs with one arm. The Respondent claimed he let her go because he was still holding the knife and he didn't want to cut her and then the Child ran down the stairs.

The Respondent's testimony is inconsistent with both the Child's statement to CPS Krol, as well as with the medical records and photographs in evidence. The Child's injuries are completely inconsistent with just having engaged in a "struggle" with the Respondent. His testimony that his only "bear-hugged" the Child with one arm around her arms is inconsistent with the injuries the Child received including a concussion, cuts behind her ear, bruising to her ear, and swelling of her ear. The Child's injuries are well documented by both the testimony of CPS Krol who observed the injuries, as well as in the documentary evidence which includes photographs of the injuries and medical records. When confronted with evidence of the Child's injuries, the Respondent claimed he had no idea how they happened. The Respondent testified that the Child wasn't injured when she left the home and he theorizes that she sustained the injuries after the fact. Given the conflicting explanation for how the Child's injuries occurred, this Court is confronted with an issue of credibility (see Matter of Sheneika V., 20 AD3d 541, 5422 [1st Dept 2015]). The Child's explanation for how the Respondent caused the injuries is credible and consistent with the injuries themselves. For example, she experienced concussions symptoms from being hit in the head, injuries to her finger consistent with defending herself from the weapon striking her head, and cuts on her neck and ear consistent with the handle part of a sword making contact with her skin.

It is incredible that the Child's boyfriend, who even the Respondent admitted was trying to flee the home, stopped to threaten the Respondent's life. It is incredible that the Respondent, who admits he was angry, didn't continue to chase the Child's boyfriend down the stairs and out of the building after he had taken the time to grab a weapon. It is incredible that the Respondent, who admits to initially trying to block her daughter from running out of the building after her boyfriend, just stopped and let her leave without further incident. Further, the Respondent's testimony that the weapon he used was a two to three foot long fishing knife that he kept in his fishing tool box is incredible. He initially told CPS Krol that the weapon was a ceremonial machete which is consistent with the Child's description of the weapon being a four feet long sword.

In determining whether a child is neglected within the meaning of Family Court Act § 1012, "courts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing. The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated. " Nicholson v. Scoppetta, 3 NY3d 357, 370 (2004). Thus, when the inquiry is whether a respondent has failed to exercise a minimum degree of care, the focus must be on whether he has met the standard of the reasonable and prudent person in similar circumstances. Id.

If the Respondent's testimony were credible, and if in fact this Court believed that all the Respondent did was restrain his daughter to prevent her from leaving, the Respondent's actions would be reasonable. However, the credible evidence establishes that the Respondent did far more than restrain his daughter, including punching the Child, hitting her on the head and ear with a sword as she tried to escape, and then chasing her out of the home while hitting her with a sword resulting in injuries to her head, finger and ear.

While this Court can certainly understand that the Respondent was upset when he saw his daughter with her boyfriend in bed in a state of semi or total undress, the Court finds that the Respondent's actions in punching and attacking his daughter with a sword on October 20, 2016 were neither reasonable nor prudent. Even if the Child's boyfriend appeared to him to look older than he actually was (a particularly unreliable claim given that the Respondent incorrectly testified that his daughter was two years younger than she actually was at the time of the incident), the Respondent's actions were still unreasonable and fall well below the minimum standard of care. The Respondent picked up a weapon and chased his daughter, attacking her with the weapon. The Respondent's actions caused significant injury to the Child, as evidenced by the cuts and scratches visible in and behind the Child's ear, as well as by her swollen finger sustained as the Child tried to defend herself, as well as by the concussion symptoms the Child experienced after the attack.

Counsel for the Respondent asks that this court dismiss the petition in it's entirety and asks the Court to consider a number of cases that are no point. In fact, these cases are clearly distinguishable from the instant matter. The present case differs from Matter of Kennya S. v. Kensader S., 89 AD3d 570 (1st Dept 2011), because the injuries in this case are not "relatively mild." In addition to the cuts, bruises and swelling visible in the photographs, the medical records establish that the Child was experiencing dizziness and other symptoms consistent with having experienced a concussion. It is noteworthy that the Child's diagnosis of having post-concussion syndrome was, according to the medical records in evidence, made based not on the Child's self-reported symptoms of experiencing dizziness and nausea almost three weeks after [*6]the attack, but also on her inability to maintain balance during a diagnostic physical exercise.

The present case also differs from Matter of Corey Mc (Tanya Mc.), 67 AD3d 1015 (2nd Dept 2009), in which the court determined that, given the age and size of the child, the provocation and the dynamics of the incident, as well as the respondent's acts which she acknowledged were completely inappropriate, a finding of neglect was not warranted. In that case, the child was verbally attacking the respondent mother as the respondent mother tried to retreat and both the mother and the child engaged in a physical confrontation with one another. The present case differs drastically in that a) the Child in this case did nothing verbally or physically to provoke the Respondent, b) there is no evidence to assume the Child's age or size would somehow disturb the natural power imbalance between an adult father and their minor daughter, and c) the Respondent in this case has not taken accountability, shown insight, or even admitted that his actions were inappropriate. Further, in that case the incident ended with the respondent mother calling the police to seek medical attention for her son, whereas in this case the Child went to the hospital without the Respondent and the Respondent was arrested. Here, the Respondent failed to take responsibilities for his actions and failed to act reasonably.

The present case also differs from Matter of Chanika B. v. Marlon V.B., 60 AD3d 671 (2nd 2009) in which the child testified that the respondent had never hit her or her brother ever before and the father had only slapped the child in the face causing her nose to bleed after she disobeyed him. In the present case, the record establishes at least one other indicated case of the Respondent using corporal punishment on the Child and the Respondent's actions are much more serious than just slapping a child in the face, and the Child's injuries are not insignificant. Similarly, the present case differs from Matter of Laequise P. (Brian C.), 119 AD3d 801 (2nd Dept 2014), in which the only incident ACS established was that the respondent used an open hand to spank the child after he heard the child curse at an adult.

The present case is drastically different from Matter of Crystal S. (Elaine S.), 74 AD3d 823 (2nd Dept 2010) in which the court held that the mother's use of force in holding the child's arms was justified to stop the child from grabbing a knife. The present case also differs from Matter of Anastasia L.-D. (Ronald D.), 113 AD3d 685 (2nd Dept 2014) in which the court did not make a neglect finding where the father hit the child with a belt after she refused to give him her phone and charged at him, finding that he did not intend to hurt her and the evidence was insufficient to establish sufficient harm to the child. In the instant case, the Child did not physically or verbally provoke the Respondent, and indeed she tried to retreat but he blocked her from leaving the home. Further, in the instant case, the Child sustained significant physical injury. In Matter of Anastasia L.-D. (Ronald D.), 113 AD3d 685, the court reiterated that parents have a right to use reasonable force against a child in order to maintain discipline or to promote a child's welfare. Indeed, as explained above, had the Respondent in this case just restrained his daughter from leaving by giving her a "bear-hug", it would have been reasonable and not neglectful. However, there is no reasonable justification for attacking his daughter with a weapon and punching her in the face. The Court finds the Respondent's use of corporal punishment on the Child was not done to promote her welfare or maintain discipline but rather, his use of force was a result of anger without a justifiable end.

The present case is similar to Matter of Tyson T. [Latoyer T.], 146 AD3d 669 [1st Dept 2017]) in which the First Department held that the evidence supported a finding that the father neglected the child by inflicting excessive corporal punishment when he struck the child with a plastic bat and belt, causing his elbow to be scratched, bruised and swollen. Similarly, in Matter [*7]of Naitalya B., 150 D3d 441 (1st 2017), the First Department held that the evidence supported a finding that the mother neglected the child by inflicting excessive corporal punishment when she struck the child with her hand and with a plastic bat, causing the child to sustain bruises all over her body. In both those cases, as here, the child's out-of-court statements were corroborated by photographs and the caseworker's testimony as to their observations if the injuries.

CONCLUSION

WHEREFORE, based upon the foregoing, this Court finds that the Petitioner has proven by a preponderance of the evidence that the Respondent neglected the Child within the meaning of Section 1012(f)(i)(b) of the New York State Family Court Act by inflicting excessive corporal punishment on October 20, 2016 by punching the Child, hitting her on the head and ear with a sword as she tried to escape, and then chasing her out of the home while hitting her with a sword resulting in injuries to her head, finger and ear.

This constitutes the decision and order of the Court.

Dated: September 6, 2017

ENTER

_____________________________________

Hon. Sarah P. Cooper, JFC

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PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.