Opinion
No. 29 CAF 21-00502
03-17-2023
IN THE MATTER OF RYANNA H. AND SERON M. STEUBEN COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; MONIQUE H., RESPONDENT-APPELLANT.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT. MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILDREN.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.
MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from an order of the Family Court, Steuben County (Philip J. Roche, J.), dated March 10, 2021 in a proceeding pursuant to Family Court Act article 10. The order determined that respondent had neglected the subject children.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order of fact-finding determining that she neglected her oldest child and derivatively neglected her younger child. We affirm.
As relevant here, a neglected child is a child less than 18 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 [or her] parent . . . to exercise a minimum degree of care" in various areas (Family Ct Act § 1012 [f] [i]). "[A] party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), first, that a 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" (Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004]; see § 1012 [f] [i]; Matter of Balle S. [Tristian S.], 194 A.D.3d 1394, 1394-1395 [4th Dept 2021], lv denied 37 N.Y.3d 904 [2021]).
Here, the mother was alleged to have struck her older child on multiple occasions with an electrical cord and a broomstick handle. Some of the incidents followed misbehavior by the older child. "Although a parent may use reasonable force to discipline his or her child and to promote the child's welfare . . ., the infliction of excessive corporal punishment constitutes neglect (see Family Ct Act § 1012 [f] [i] [B]). A single incident of excessive corporal punishment can be sufficient to support a finding of neglect" (Balle S., 194 A.D.3d at 1395; see Matter of Kayla K. [Emma P.-T.], 204 A.D.3d 1412, 1413 [4th Dept 2022]; Matter of Justin M.F. [Randall L.F.], 170 A.D.3d 1514, 1515 [4th Dept 2019]).
In addition, a finding of derivative neglect may be made "where the evidence with respect to the child found to be . . . neglected demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [the parent's] care" (Matter of Sean P. [Sean P.], 162 A.D.3d 1520, 1520 [4th Dept 2018], lv denied 32 N.Y.3d 905 [2018] [internal quotation marks omitted]; see Balle S., 194 A.D.3d at 1396).
We conclude that there is a sound and substantial basis in the record for Family Court's [*2]finding that the older child was neglected and that the younger child was derivatively neglected (see generally Family Ct Act §§ 1012 [f] [i] [B]; 1046 [a] [i]; [b] [i]; Nicholson, 3 N.Y.3d at 368, 371; Balle S., 194 A.D.3d at 1395-1396). The record establishes that "each child's out-of-court statements were sufficiently corroborated, and cross-corroborated," by the photographs and witnesses' observations of the older child's injuries (Matter of Dixon v Crow, 192 A.D.3d 1467, 1468 [4th Dept 2021], lv denied 37 N.Y.3d 904 [2021]; see Matter of Rashawn J. [Veronica H.-B.], 159 A.D.3d 1436, 1436 [4th Dept 2018]; Matter of Bryan O. [Zabiullah O.], 153 A.D.3d 1641, 1642 [4th Dept 2017]). The fact that the older child's injuries "did not require medical attention does not preclude a finding of neglect based on the infliction of excessive corporal punishment" (Balle S., 194 A.D.3d at 1395).
With respect to the finding of derivative neglect, we conclude that the mother's "use of excessive corporal punishment on the [older] child, visibly demonstrated by the photographs of her injuries, showed that [the mother] had a fundamental defect in [her] understanding of [her] duties as a parent and an impaired level of parental judgment sufficient to support a determination that the younger child[ ] had been derivatively neglected" (Balle S., 194 A.D.3d at 1396). Moreover, the mother's neglect of the older child was "so closely connected with the care of [the younger child] as to indicate that [he is] equally at risk" (Matter of Marino S., 100 N.Y.2d 361, 374 [2003], cert denied 540 U.S. 1059 [2003]; see Rashawn J., 159 A.D.3d at 1437).
The mother's only defense was that the children were lying, which presented the court with credibility determinations to make. The court rejected the mother's testimony, and we see no basis to disturb the court's assessment and resolution of those credibility issues (see Dixon, 192 A.D.3d at 1469; Bryan O., 153 A.D.3d at 1642).