Opinion
181 CAF 18–00112
03-15-2019
In the MATTER OF JUSTIN M.F. Monroe County Department of Human Services, Petitioner–Appellant; v. Randall L.F., Respondent–Respondent. Tanya J. Conley, Rochester, Attorney for the Child, Appellant
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (PETER A. ESSLEY OF COUNSEL), FOR PETITIONER–APPELLANT. TANYA J. CONLEY, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (PETER A. ESSLEY OF COUNSEL), FOR PETITIONER–APPELLANT.
TANYA J. CONLEY, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously reversed on the law and facts without costs and the petition is granted insofar as it seeks a determination that the child is a neglected child as defined in Family Court Act § 1012(f)(i)(B).
Memorandum: In this proceeding pursuant to Family Court Act article 10, petitioner and the Attorney for the Child (AFC) appeal from an order that dismissed the petition after a fact-finding hearing. In the petition, petitioner alleged that respondent father neglected the subject child by inflicting excessive corporal punishment. We agree with petitioner and the AFC that petitioner established that the father neglected the child by inflicting excessive corporal punishment, and we therefore reverse the order and grant the petition insofar as it seeks a determination that the child is a neglected child as defined in Family Court Act § 1012(f)(i)(B).
A party seeking to establish neglect 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] ). Although a parent may use reasonable force to discipline his or her child to promote the child's welfare (see 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 ( Family Ct. Act § 1012[f][i][B] ). Indeed, " ‘a single incident of excessive corporal punishment is sufficient to support a finding of neglect’ " ( Matter of Dustin B. [Donald M.] , 71 A.D.3d 1426, 1426, 896 N.Y.S.2d 552 [4th Dept. 2010] ; see Matter of Nicholas W. [Raymond W.] , 90 A.D.3d 1614, 1615, 936 N.Y.S.2d 450 [4th Dept. 2011] ).
Here, petitioner established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporal punishment (see generally Family Ct. Act § 1012[f][i][B] ). At the hearing, petitioner presented, among other things, witness testimony and medical records indicating that the child sustained a bruised left temple, a bruised eye, and a bloody and swollen nose after the father struck him (see Matter of Padmine M. [Sandra M.] , 84 A.D.3d 806, 807, 922 N.Y.S.2d 527 [2d Dept. 2011] ; Matter of Nicole H. , 12 A.D.3d 182, 183, 783 N.Y.S.2d 575 [1st Dept. 2004] ; see generally Matter of Castilloux v. New York State Off. of Children & Family Servs. , 16 A.D.3d 1061, 1062, 791 N.Y.S.2d 755 [4th Dept. 2005], lv denied 5 N.Y.3d 702, 800 N.Y.S.2d 373, 833 N.E.2d 708 [2005] ).