| Matter of Anthony J. v David K. |
| 2010 NY Slip Op 01400 [70 AD3d 1220] |
| February 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony J., Respondent, v David K., Appellant,and Denise K., Respondent. |
—[*1] Allen E. Stone, Vestal, for Anthony J., respondent. Alice Decker, Legal Aid Society of Mid-New York, Binghamton, for Denise K., respondent. Steven J. Getman, Law Guardian, Ovid.
Garry, J. Appeals from two orders of the Family Court of Broome County (Charnetsky, J.),entered January 23, 2009 and February 9, 2009, which partially granted petitioner's application,in a proceeding pursuant to Family Ct Act article 8, for an order of protection.
Petitioner, who is incarcerated, is the biological father of two of the three children in thisproceeding (born 1999 and 2001). Respondent Denise K. (hereinafter the mother) is the motherof all three children and is married to respondent David K. (hereinafter the stepfather), who is thebiological father of the third child (born in 2006). Petitioner filed a family offense petitionalleging that the stepfather had choked and assaulted one of petitioner's children (hereinafter thechild). After a fact-finding hearing, Family Court found that the stepfather had [*2]acted "in a harassing manner" and that a family offense hadoccurred.[FN*]The court issued an enabling order and an order of protection directing the stepfather to refrainfrom using corporal punishment directed toward petitioner's children. The stepfather, supportedby the mother, now appeals both orders.
The stepfather and the mother testified without contradiction that, after being sent to hisroom, the child became upset and swore at the stepfather. In response, the stepfather "grabbed"or "squeezed" the child's shoulder and told him to stay in his room. The mother and stepfathertestified that the child was not bruised or otherwise injured. The incident was investigated bylocal police, who filed no charges, and by the local Department of Social Services (hereinafterDSS), which concluded that there was no credible evidence of abuse or neglect. Family Courtmade a factual finding that, after the child "got a little bit out of control [and] used some veryinappropriate language," the stepfather "sought to try and get him under control by grabbing hisshoulder."
A respondent's conduct forms the basis for a family offense predicated on harassment in thesecond degree when "with intent to harass, annoy or alarm another person . . . [h]eor she strikes, shoves, kicks or otherwise subjects such other person to physical contact" (PenalLaw § 240.26 [1]; see Family Ct Act § 812 [1]). We find the proof of intentinsufficient and, thus, petitioner did not meet his burden of establishing by a fair preponderanceof the evidence that the stepfather's conduct constituted this offense (see Family Ct Act§ 832). A child's caretaker may use reasonable physical force for the purpose of discipline(see Penal Law § 35.10 [1]; see generally Matter of Collin H., 28 AD3d 806, 809 [2006]). Theproof did not establish that the stepfather used unreasonable force or that his conduct wasundertaken for any purpose other than discipline (contrast People v Kearns, 56 AD3d 1047, 1049 [2008], lvdenied 12 NY3d 784 [2009]). In the absence of proof revealing the requisite intent, nofamily offense was established, and the order of protection was improperly issued (see Matter of Lewis v Robinson, 41AD3d 996, 997 [2007]).
Cardona, P.J., Peters, Spain and Stein, JJ., concur. Ordered that the orders are modified, onthe law, without costs, by reversing so much thereof as partially granted the petition and issuedan order of protection; petition dismissed in its entirety and order of protection vacated; and, asso modified, affirmed.
Footnote *: Family Court dismissed thepetition insofar as it pertained to the stepfather's child on the ground that the father lackedstanding, and dismissed the petition against the mother in its entirety.