Opinion
775 CAF 22-00267
11-17-2023
In the MATTER OF ARIONA P. Erie County Department of Social Services, Petitioner-Respondent; v. Demetrius D., Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. BENJAMIN E. MANNION, BUFFALO, FOR PETITIONER-RESPONDENT. MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
BENJAMIN E. MANNION, BUFFALO, FOR PETITIONER-RESPONDENT.
MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this neglect proceeding pursuant to Family Court Act article 10, respondent father appeals from an order of fact-finding and disposition that, inter alia, adjudicated the child to be a neglected child. Initially, we note that the father contends that he has been denied adequate appellate review because the transcript of the testimony of several of petitioner's witnesses is missing due to the apparent failure to record the proceedings of that day. The father failed to seek a reconstruction hearing with respect to the missing parts of the record (see Matter of Mikel B. [Carlos B.] , 115 A.D.3d 1348, 1348, 984 N.Y.S.2d 253 [4th Dept. 2014] ). Thus, the father's contention is not properly before us inasmuch as it is raised for the first time on appeal (see generally Matter of Abigail H. [Daniel D.] , 172 A.D.3d 1922, 1923, 97 N.Y.S.3d 924 [4th Dept. 2019], lv denied 34 N.Y.3d 901, 2019 WL 5269441 [2019] ; Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, we conclude that "the record as submitted is sufficient for this Court to determine" the issues raised on appeal ( Matter of Stephen B. [appeal No. 2], 195 A.D.2d 1065, 1065, 601 N.Y.S.2d 897 [4th Dept. 1993] ).
The father further contends that petitioner failed to establish neglect by a preponderance of the evidence. We reject that contention. To establish neglect, the petitioner must establish, 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 or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ " ( Matter of Jayla A. [Chelsea K.—Isaac C.] , 151 A.D.3d 1791, 1792, 54 N.Y.S.3d 819 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653460 [2017], quoting Nicholson v. Scoppetta , 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; see Family Ct Act § 1012 [f] [i] ). Although a parent may use reasonable force to discipline their child and to promote the child's welfare (see Matter of Balle S. [Tristian S.] , 194 A.D.3d 1394, 1395, 147 N.Y.S.3d 292 [4th Dept. 2021], lv denied 37 N.Y.3d 904, 2021 WL 3925791 [2021] ; Matter of Damone H., Jr. [Damone H., Sr.] [appeal No. 2], 156 A.D.3d 1437, 1438, 65 N.Y.S.3d 845 [4th Dept. 2017] ), the infliction of excessive corporal punishment constitutes neglect (see § 1012 [f] [i] [B] ), and a single incident of excessive corporal punishment can be sufficient to support a finding of neglect (see Matter of Ryanna H. [Monique H.] , 214 A.D.3d 1308, 1309, 185 N.Y.S.3d 430 [4th Dept. 2023], lv dismissed 40 N.Y.3d 964, 196 N.Y.S.3d 41, 218 N.E.3d 151 [2023] ; Balle S. , 194 A.D.3d at 1395, 147 N.Y.S.3d 292 ; Matter of Steven L. , 28 A.D.3d 1093, 1093, 813 N.Y.S.2d 627 [4th Dept. 2006], lv denied 7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244 [2006] ).
Here, the evidence at the fact-finding hearing included the testimony of the nurse practitioner who examined the child two days after the incident and observed "wounds about the left eye," as well as "bruising and swelling." In addition, the nurse practitioner testified that the child reported having been kicked in the abdomen and "beaten with a broom." The child reported pain in the abdomen and head. The nurse practitioner testified that the child presented as anxious and restless. She referred the child to the emergency room for further treatment due to the pain in the child's abdomen. We therefore conclude that petitioner established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporal punishment (see Matter of Amarion M. [Faith W.] , 214 A.D.3d 1457, 1458, 185 N.Y.S.3d 478 [4th Dept. 2023], lv denied 39 N.Y.3d 915, 2023 WL 3960599 [2023] ; Matter of Kayla K. [Emma P.-T.] [appeal No. 1], 204 A.D.3d 1412, 1413, 167 N.Y.S.3d 264 [4th Dept. 2022] ; Balle S. , 194 A.D.3d at 1395, 147 N.Y.S.3d 292 ; see generally Family Ct Act § 1046 [a] [vi]; Matter of Nicholas J.R. [Jamie L.R.] , 83 A.D.3d 1490, 1490, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ).