Opinion
2014-07-16
In the Matter of DYLAN G. (Anonymous). Administration for Children's Services, petitioner-respondent; Victor M. (Anonymous), Jr., respondent-appellant. (Proceeding No. 1) In the Matter of Tayina I.M. (Anonymous). Administration for Children's Services, petitioner-respondent; Victor M. (Anonymous), Jr., respondent-appellant. (Proceeding No. 2).
Zvi Ostrin, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for petitioner-respondent.
Zvi Ostrin, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for petitioner-respondent.
Joel Borenstein, Brooklyn, N.Y., attorney for the child Dylan G.
Paul B. Guttenberg, Syosset, N.Y., attorney for the child Tayina I.M.
In related child protective proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Queens County (Salinitro, J.), dated March 13, 2012, which, after a hearing, found that he sexually abused the child Tayina I.M. and neglected the children Tayina I.M. and Dylan G., and (2) an order of disposition of the same court dated June 25, 2012, which, upon the order of fact-finding, and after a dispositional hearing, released the children to the nonrespondent mother.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the order of disposition is affirmed, without costs or disbursements.
After a fact-finding hearing pursuant to Family Court Act article 10, any determination that a child is abused or neglected must be based on a preponderance of the evidence ( seeFamily Ct. Act § 1046[b]; Matter of Nicole V., 71 N.Y.2d 112, 117, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Dareth O., 304 A.D.2d 667, 668, 758 N.Y.S.2d 372). The Family Court's assessment of the credibility of witnesses is entitled to considerable deference ( see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337;see also Matter of Nurridin B., 116 A.D.3d 770, 982 N.Y.S.2d 910;Matter of Jada A. [Robert W.], 116 A.D.3d 769, 982 N.Y.S.2d 917).
Family Court Act § 1012(e)(iii) provides that an abused child is “a child less than eighteen years of age whose parent or other person legally responsible for his care ... commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law.” Penal Law § 130.55 provides that “[a] person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent.”
The Family Court's finding that the appellant sexually abused his daughter Tayina I.M. was supported by a preponderance of the evidence ( seeFamily Ct. Act §§ 1012[e][iii]; 1046[b][I]; Penal Law § 130.55; Matter of Joshua P. [David J.], 111 A.D.3d 836, 975 N.Y.S.2d 440). In light of the conflicting testimony presented at the fact-finding hearing, the factual findings of the Family Court turned largely on its assessment of witnesses' credibility. Here, there is no basis in the record to disturb the Family Court's assessment of the witnesses' credibility.
Parents possess a right to use reasonable physical force to discipline their children ( see Matter of Isaiah S., 63 A.D.3d 948, 949, 880 N.Y.S.2d 528;see also Penal Law § 35.10[1] ). However, a parent's use of excessive corporal punishment constitutes neglect ( see Family Ct. Act § 1012[f][i] [B]; Matter of Isaiah S., 63 A.D.3d at 949, 880 N.Y.S.2d 528), and neglect may be established by even a single incident of excessive corporal punishment ( see Matter of Nurridin B. [Louis J.], 116 A.D.3d at 770, 982 N.Y.S.2d 910;Matter of Padmine M. [Sandra M.], 84 A.D.3d 806, 807, 922 N.Y.S.2d 527;Matter of Rachel H., 60 A.D.3d 1060, 876 N.Y.S.2d 463).
Here, contrary to the appellant's contention, the Family Court's finding of neglect of the children based on excessive corporal punishment was supported by a preponderance of the evidence ( seeFamily Ct. Act § 1012[f][i][B]; Matter of Nurridin B. [Louis J.], 116 A.D.3d 770, 982 N.Y.S.2d 910;Matter of Yanni D. [Hope J.], 95 A.D.3d 1313, 1314, 944 N.Y.S.2d 923;Matter of James S. [Kathleen S.], 88 A.D.3d 1006, 931 N.Y.S.2d 524;Matter of Padmine M. [Sandra M.], 84 A.D.3d at 806, 922 N.Y.S.2d 527). BALKIN, J.P., LEVENTHAL, MALTESE and LaSALLE, JJ., concur.