Matter of Devante S.
2008 NY Slip Op 04282 [51 AD3d 482]
May 8, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 16, 2008


In the Matter of Devante S. and Others, Children Alleged to be Neglected. John H., Appellant; Administration for Children's Services, Respondent.

[*1] Michael S. Bromberg, Sag Harbor, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), Law Guardian.

Order of disposition, Family Court, Bronx County (Douglas E. Hoffman, J.), entered on or about January 8, 2007, which, upon a fact-finding determination that respondent father had neglected his children, released the children to their mother's custody under petitioner's supervision for a period of 12 months, unanimously affirmed, without costs.

The finding of neglect is supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]) showing that respondent inflicted excessive corporal punishment on his children (see Family Ct Act § 1012 [f] [i] [B]). The children's out-of-court statements were cross-corroborating (see Matter of Nicole V., 71 NY2d 112, 124 [1987]). Further, the court credited the caseworker's testimony concerning respondent's angry behavior during and after a home visit and the children's apparent fearfulness in his presence. The court also appropriately considered a past adjudication of neglect against respondent that was based upon a finding of excessive corporal punishment involving the use of a belt against a toddler, as well as his current failure to follow agency recommendations (see generally Matter of Evelyn B., 30 AD3d 913, 915-917 [2006], lv denied 7 NY3d 713 [2006]), and his failure to [*2]testify, from which the court was entitled to draw the "strongest negative inference" (Matter of Nicole H., 12 AD3d 182, 183 [2004]). Concur—Tom, J.P., Williams, Catterson and Acosta, JJ.