| Matter of Aaliyah Q. |
| 2008 NY Slip Op 07811 [55 AD3d 969] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Aaliyah Q. and Others, Children Alleged to beNeglected. Broome County Department of Social Services, Respondent; Rodney R., Appellant et al.,Respondent. |
—[*1] Kuredin Eytina, Broome County Department of Social Services, Binghamton, for respondent. Peter Fee, Law Guardian, Vestal. Cynthia Feathers, Law Guardian, Albany.
Peters, J. Appeals (1) from an order of the Family Court of Broome County (Connerton, J.),entered February 27, 2007, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate Aaliyah Q. and Kaylil Q. to be neglected children, and (2) from anorder of said court, entered April 19, 2007, which, in a proceeding pursuant to Family Ct Act article10, denied respondent's motion to remove the children's Law Guardians.
In January 2006, petitioner received a report from the New York State Central Register of ChildAbuse and Maltreatment that respondent Rodney R. (hereinafter respondent) had bitten the children ofhis paramour, respondent Ivy Q. (hereinafter the mother). Petitioner thereafter [*2]commenced this proceeding alleging that respondents had neglectedAaliyah Q. (born in 2001) and Kaylil Q. (born in 1999)—the mother's children by LarryQ.—and Tanajha R. (born in 2004)—the mother's child by respondent.[FN*]
After a fact-finding hearing, Family Court adjudicated Aaliyah and Kaylil to be neglected andTanajha to be derivatively neglected. Family Court subsequently entered two dispositional orders inFebruary 2007—one regarding Aaliyah and Kaylil and one regarding Tanajha—whichcontinued the placement of all three children with petitioner. Respondent then moved to remove theLaw Guardians who had been appointed for the children in the proceedings. That motion was denied inApril 2007. Respondent now appeals from the dispositional order with respect to Aaliyah and Kayliland the order denying his motion.
Upon our review of the record, we conclude that Family Court's finding of neglect was supportedby a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). While a parentor caretaker may use reasonable corporal punishment to discipline his or her children (seePenal Law § 35.10 [1]; Matter ofCollin H., 28 AD3d 806, 809 [2006]), even a single incident of excessive corporalpunishment can be sufficient to constitute child neglect (see Family Ct Act § 1012 [f] [i][B]; Matter of Justin O., 28 AD3d877, 878 [2006]; Matter of Shawn BB., 239 AD2d 678, 680 [1997]). The action of anadult biting a child's fingers hard enough to break the skin and cause scabbing and swelling as a form ofdiscipline may constitute excessive corporal punishment (see e.g. Matter of William L. v BettyT., 243 AD2d 860, 861 [1997]; Matter of Daniel R., 241 AD2d 956, 957 [1997];Matter of Commissioner of Social Servs. of City of N.Y. v Ligia K., 207 AD2d 488, 489[1994]).
Here, Family Court properly found that respondent was a person legally responsible for the care ofthe children as he acted as a functional equivalent of a parent (see Family Ct Act § 1012[g]; Matter of Brent HH., 309 AD2d 1016, 1017 [2003], lv denied 1 NY3d 506[2004]). Family Court further found that he had bitten Kaylil and Aaliyah as a means of discipline, andthat such behavior constituted excessive corporal punishment. The testimony at the fact-finding hearingdemonstrated that respondent, as punishment for perceived infractions, had bitten the fingers of Kayliland Aaliyah, causing lacerations, swelling, scabbing and scarring. The injuries were reported by thechildren's father. Petitioner's caseworker then separately interviewed each child, who, after initialhesitation, admitted that they had been bitten by respondent and that they had seen respondent bite theother child. Respondent claimed that the injuries were caused when the children bit each other, but thechildren denied this allegation and differentiated the injuries caused by respondent from the injuriescaused by their younger sibling, Tanajha.
Although the children did not testify, their out-of-court statements were sufficiently corroborated byan indicated State Central Register report (see Family Ct Act § 1046 [a] [v]), bycross-corroborating statements regarding the same incidents (see Matter of Ian H., 42 AD3d 701, 703 [2007], lv denied 9NY3d 814 [2007]; Matter of Kayla F.,39 AD3d 983, 984 [2007]), and by their "observed and photographed injuries" (Matter ofCollin H., 28 AD3d at 808; see Family Ct Act § 1046 [a] [ii]). Thus, according duedeference to Family Court's opportunity to judge the witnesses' credibility (see Matter of Bessette v Pelton, 29 AD3d1085, 1087 [2006]), we find that [*3]there was sufficient evidenceto support Family Court's determination that respondent neglected the subject children by usingexcessive corporal punishment.
Respondent also claims that the Law Guardians for the children should have been removedbecause they were "lazy and incompetent and biased." As Law Guardians must "advocate for andrepresent the best interests of the children, not the parents" (Matter of Hanehan v Hanehan, 8 AD3d 712, 714 [2004]), the fact thatthey took a position contrary to that of respondent does not indicate bias (see Matter of NicoleVV., 296 AD2d 608, 614 [2002], lv denied 98 NY2d 616 [2002]). The Law Guardianstook an active role in these extended proceedings and we find that Family Court properly refused toremove them.
Cardona, P.J., Mercure, Carpinello and Kavanagh, JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote *: Another proceeding was alsocommenced against respondents with respect to a fourth child, which is not the subject of this appeal.