Opinion
350 CAF 19-02017
05-07-2021
In the MATTER OF BALLE S., Baylee S., Brooklyn S., and Layla S. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Tristian S., Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (DAVID L. CHAPLIN OF COUNSEL), FOR PETITIONER-RESPONDENT. HEATHER L. YOUNGMAN, SYRACUSE, ATTORNEY FOR THE CHILDREN.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (DAVID L. CHAPLIN OF COUNSEL), FOR PETITIONER-RESPONDENT.
HEATHER L. YOUNGMAN, SYRACUSE, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 father appeals from an order of fact-finding and disposition determining, inter alia, that he neglected his oldest child and derivatively neglected his three younger children. We affirm.
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 and 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 his or her child and 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 (see Family Ct Act § 1012 [f] [i] [B] ). A single incident of excessive corporal punishment can be sufficient to support a finding of neglect (see 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] ).
We conclude that there is a sound and substantial basis in the record for Family Court's determination that the father neglected the oldest child by inflicting excessive corporal punishment on her (see generally Family Ct Act § 1012 [f] [i] [B] ). The evidence at the fact-finding hearing included the father's own admission to a caseworker that he had "whooped [the oldest child's] ass" and struck her repeatedly with a phone charger cord and a rubber tube to inflict harm on her after she ran away (see Matter of Rashawn J. [Veronica H.-B.] , 159 A.D.3d 1436, 1436-1437, 72 N.Y.S.3d 686 [4th Dept. 2018] ; Matter of Padmine M. [Sandra M.] , 84 A.D.3d 806, 807, 922 N.Y.S.2d 527 [2d Dept. 2011] ; cf. Damone H., Jr. , 156 A.D.3d at 1438, 65 N.Y.S.3d 845 ). Further, out-of-court statements made by the three younger children to a caseworker established that the incident was part of a pattern of excessive corporal punishment because those children stated that the father regularly disciplined them by, inter alia, hitting them (see Matter of Tiara G. [Cheryl R.] , 102 A.D.3d 611, 611-612, 959 N.Y.S.2d 147 [1st Dept. 2013], lv denied 21 N.Y.3d 855, 2013 WL 1876261 [2013] ).
Contrary to the father's contention, petitioner established that, as a result of the incident where the father struck the oldest child with the phone charger cord and rubber tube and previous instances of corporal punishment, the oldest child's mental, or emotional condition was impaired, inasmuch as she had marks on her body, was in great pain, and was afraid of the father (see Matter of Ricardo M.J. [Kiomara A.] , 143 A.D.3d 503, 503, 38 N.Y.S.3d 196 [1st Dept. 2016] ; Matter of Kim HH. , 239 A.D.2d 717, 719, 658 N.Y.S.2d 480 [3d Dept. 1997] ; see generally Jayla A. , 151 A.D.3d at 1792, 54 N.Y.S.3d 819 ). The fact that the oldest child's injuries did not require medical attention does not preclude a finding of neglect based on the infliction of excessive corporal punishment (see Matter of Tyson T. [Latoyer T.] , 146 A.D.3d 669, 670, 45 N.Y.S.3d 459 [1st Dept. 2017] ).
We further conclude that there is a sound and substantial basis in the record for the court's determination that the father derivatively neglected the three younger children (see Family Ct Act § 1046 [b] [i] ; see generally Nicholson , 3 N.Y.3d 357 at 368, 371, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; Matter of Makayla L.P. [David S.] , 92 A.D.3d 1248, 1249-1250, 939 N.Y.S.2d 680 [4th Dept. 2012], lv dismissed 19 N.Y.3d 886, 948 N.Y.S.2d 577, 971 N.E.2d 858 [2012] ). "Although evidence of ... neglect of one child does not, standing alone, establish a prima facie case of derivative neglect against a parent, [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, 78 N.Y.S.3d 549 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4440653 [2018] [internal quotation marks omitted]).
Here, the father's use of excessive corporal punishment on the oldest child, visibly demonstrated by the photographs of her injuries, showed that he had a fundamental defect in his understanding of his duties as a parent and an impaired level of parental judgment sufficient to support a determination that the younger children had been derivatively neglected (see Matter of Corey J. [Corey J.] , 157 A.D.3d 449, 450, 68 N.Y.S.3d 443 [1st Dept. 2018] ; Matter of Isabella D. [David D.] , 145 A.D.3d 1003, 1005, 44 N.Y.S.3d 187 [2d Dept. 2016] ; Matter of Joseph C. [Anthony C.] , 88 A.D.3d 478, 479, 931 N.Y.S.2d 44 [1st Dept. 2011] ). Further, two of the three younger children confirmed that they had been subject to similar, albeit less severe, corporal punishment by the father. Thus, petitioner established that the three younger children were "in imminent danger of being impaired by the imposition of excessive corporal punishment" in the future ( Matter of Anthony C. , 201 A.D.2d 342, 343, 607 N.Y.S.2d 324 [1st Dept. 1994] ).
Contrary to the father's contention, although the three younger children were not present during the incident involving the oldest child, they need not have witnessed the incident of excessive corporal punishment to sustain a finding of derivative neglect (see generally Matter of Keith H. [Logann M.K.] , 113 A.D.3d 555, 555, 980 N.Y.S.2d 14 [1st Dept. 2014], lv denied 23 N.Y.3d 902, 2014 WL 1775882 [2014] ). Rather, "[t]o sustain a finding of derivative neglect, the prior neglect finding must be so proximate in time to the derivative proceeding so as to enable the factfinder to reasonably conclude that the condition still exists" ( Sean P. , 162 A.D.3d at 1520, 78 N.Y.S.3d 549 [internal quotation marks omitted]). Because the finding of derivative neglect with respect to the three younger children was made at the same time as the finding of neglect with respect to the oldest child, we conclude that the requirement is satisfied (see id. ).