Opinion
123 CAF 20-01344
03-17-2023
In the MATTER OF VASHTI M. Erie County Department of Social Services, Petitioner-Respondent; v. Carolette M., Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. JESSICA L. VESPER, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
JESSICA L. VESPER, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order determining, inter alia, that she neglected the subject child. Initially, we note that the appeal insofar as it concerns the disposition must be dismissed because the mother consented to the disposition (see CPLR 5511 ; Matter of Noah C. [Greg C.] , 192 A.D.3d 1676, 1676, 145 N.Y.S.3d 266 [4th Dept. 2021] ). Nevertheless, we agree with the mother that her challenge to the finding of neglect is properly before us. The mother is aggrieved by that finding despite her consent to the disposition (see Noah C. , 192 A.D.3d at 1676-1677, 145 N.Y.S.3d 266 ), and the fact that the child has attained the age of majority does not render this appeal academic inasmuch as "[a] determination of neglect creates a permanent and significant stigma which is capable of affecting a parent's status in potential future proceedings" ( Matter of Jesus M. [Jamie M.] , 118 A.D.3d 1436, 1437, 988 N.Y.S.2d 778 [4th Dept. 2014], lv denied 24 N.Y.3d 904, 2014 WL 4637190 [2014] [internal quotation marks omitted]; see Matter of Eliora B. [Kennedy B.] , 146 A.D.3d 772, 773, 45 N.Y.S.3d 144 [2d Dept. 2017] ). With respect to the merits, however, we reject the mother's contention that Family Court erred in determining that petitioner established, by a preponderance of the evidence, that she neglected the child by inflicting excessive corporal punishment on her. " ‘A single incident of excessive corporal punishment can be sufficient to support a finding of neglect’ " ( Matter of Grayson S. [Thomas S.] , 209 A.D.3d 1309, 1313, 175 N.Y.S.3d 825 [4th Dept. 2022] ). Here, the child's statements to petitioner's caseworker, which were corroborated by the caseworker's observations of the child's injuries and by the mother's admissions (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 Bryan O. [Zabiullah O.] , 153 A.D.3d 1641, 1642, 61 N.Y.S.3d 409 [4th Dept. 2017] ), established that the mother inflicted excessive corporal punishment by instigating a confrontation with the child in which she struck the child in the face with an open hand, pushed her and caused her to fall into a bathtub and sustain visible swelling to her leg, and threatened her with a knife (see Matter of Kayla K. [Emma P.-T.] , 204 A.D.3d 1412, 1413, 167 N.Y.S.3d 264 [4th Dept. 2022] ; Matter of Deandre C. [Luis D.] , 169 A.D.3d 609, 610, 92 N.Y.S.3d 886 [1st Dept. 2019] ; Matter of Christina BB. , 305 A.D.2d 735, 736, 759 N.Y.S.2d 560 [3d Dept. 2003] ; cf. Grayson S. , 209 A.D.3d at 1313, 175 N.Y.S.3d 825 ). The hearing evidence also established that the child's physical condition and emotional condition were impaired as a result of the incident (see Family Ct Act § 1012 [f] [i] [B] ; Balle S. , 194 A.D.3d at 1395, 147 N.Y.S.3d 292 ; Matter of DeShawn D.O. [Maria T.O.] , 81 A.D.3d 961, 962, 917 N.Y.S.2d 874 [2d Dept. 2011], lv dismissed 17 N.Y.3d 773, 929 N.Y.S.2d 75, 952 N.E.2d 1069 [2011] ). The court's determination that the mother's account of the incident was not credible is entitled to deference (see Matter of Kaylee D. [Kimberly D.] , 154 A.D.3d 1343, 1345-1346, 61 N.Y.S.3d 783 [4th Dept. 2017] ; see generally Noah C. , 192 A.D.3d at 1678, 145 N.Y.S.3d 266 ), and we conclude that the court's determination that the mother neglected the child by inflicting excessive corporal punishment is supported by a sound and substantial basis in the record (see Kayla K. , 204 A.D.3d at 1413, 167 N.Y.S.3d 264 ; Balle S. , 194 A.D.3d at 1395, 147 N.Y.S.3d 292 ).