| Matter of Joshua R. |
| 2008 NY Slip Op 00203 [47 AD3d 465] |
| January 15, 2008 |
| Appellate Division, First Department |
| In the Matter of Joshua R. and Another, Children Alleged to beNeglected and Abused. Samuel R., Appellant; Administration for Children's Services,Respondent, et al., Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Marta Ross of counsel), forAdministration for Children's Services, respondent. Tamara A. Steckler, The Legal Aid Society, New York City (Mitchell Katz of counsel), LawGuardian.
Order of disposition, Family Court, New York County (Rhoda J. Cohen, J.), entered on orabout August 3, 2005, which, upon a finding that respondent father neglected and abused JoshuaR., and derivatively neglected and abused Isabella R., placed respondent under the supervision ofpetitioner Administration for Children's Services for a period of 12 months, directed him tocomply with therapy, barred him from residing at home, and awarded him weekly supervisedvisits with the children, modified, on the law and the facts, the findings of abuse and derivativeabuse vacated, and otherwise affirmed, without costs.
The finding that respondent father neglected nine-year-old Joshua was established by apreponderance of the evidence. Following the child's refusal to eat food, respondent shoved thefood into his mouth, causing him to vomit, and slapped him in the face with such force as tobloody his nose and bruise his left eye (see Family Ct Act § 1012 [f] [i] [B]; Matter of Sheneika V., 20 AD3d541 [2005]; Matter of Shawn BB., 239 AD2d 678 [1997]). The finding of derivativeneglect was also appropriate inasmuch as respondent's behavior demonstrated such an impairedlevel of parental judgment as to create a substantial risk of harm for any child in his care(Matter of Vincent M., 193 AD2d 398, 404 [1993]).
However, we modify the order to the extent of vacating the findings of abuse and derivativeabuse. Family Court was presented with evidence that respondent believed his behavior instriking Joshua was not excessive. Although not condoning such conduct, we note [*2]that the evidence does not support a finding that respondentinflicted an injury to Joshua "which cause[d] or create[d] a substantial risk of death, or serious orprotracted disfigurement, or protracted impairment of physical or emotional health or protractedloss or impairment of the function of any bodily organ" (Family Ct Act § 1012 [e] [i];see Matter of Rosina W., 297 AD2d 639 [2002]).
We have considered respondent's remaining contentions and find them unavailing.Concur—Nardelli, J.P., Gonzalez, McGuire and Kavanagh, JJ.
Sweeny, J., dissents in part in a memorandum as follows: While I concur with the majorityon the issue of neglect, I cannot agree that the injuries suffered by Joshua did not constituteabuse.
The evidence adduced at the fact-finding hearing revealed that Hyon Baek, an Administrationfor Children's Services (ACS) caseworker, was assigned to investigate a report of suspectedabuse called in by Joshua's school counselor. He went to respondent's home on November 3,2004 and the parents, respondents Samuel and Maria, and Joshua and his sister Isabella werepresent. Samuel denied he had intentionally hit Joshua, claiming he had been "rough playing"and accidentally bumped his head into Joshua's head. Samuel refused to allow Baek to speak toJoshua alone and became belligerent, demanding that Baek "get the f**k out of the house."
Baek left but reentered a short time later with the police. While he spoke with Joshua, Baekheard Samuel yelling and screaming in the background. Joshua told Baek that the previousevening Samuel cooked dinner. When Joshua said he did not want to eat, Samuel shoved foodinto his mouth and began screaming and yelling at him repeatedly to eat and to swallow. Joshuagagged and then vomited, causing Samuel to become further enraged. He then struck Joshua withhis "open fist" (as per medical report), causing Joshua's nose to bleed and his left eye to becomeswollen and lacerated. Joshua later denied that his father hit him, but said that he often was angryand yelled. Joshua also related that two years prior to this incident, Samuel hit him with a belt.Baek observed a "circular mark around [Joshua's] left eye which colored the whole left eye" aswell as "reddish . . . linear marks" on the left side of his face.
Baek also spoke with Isabella who stated she was taking a nap with her mother Maria at thetime of the incident. She woke up because she heard Joshua crying and Samuel screaming. Shesaw that Joshua's nose was bleeding and there was a towel on the floor with blood on it. Isabellasaid she heard her father say he had hit Joshua because he did not eat his food, and told Baek that"her father yells at them whenever he smacks them" but refused to elaborate on those statements.
In Baek's second interview with Samuel, he admitted slapping Joshua because he did not eathis food but denied shoving food into Joshua's mouth. Samuel did not believe his behavior wasexcessive and "showed no remorse whatsoever." He also denied hitting the children in the past orhaving used a belt to discipline them.
Maria testified that she was taking a nap and was awakened when she heard Samuel"screaming" and "yelling" at Joshua. She asked Joshua what happened and he told her "his fatherhit him because he wasn't eating his broccoli." Joshua told her that he vomited when his father"pushed him into—pressured him into eating his broccoli . . . he said eat, eat,eat, eat."
Neither Samuel nor Maria took Joshua for medical attention that day. However, certified[*3]records from Bellevue Hospital Center, dated November 3,2004, revealed that Joshua suffered a black left eye with a one-centimeter-by-one-centimeterecchymosis (a visible extravasation of blood just below the skin surface) above the eyelid and atwo-centimeter-by-two-centimeter mark below the eyelid. The records also indicated that Joshuahad a nosebleed after being hit by his father.
Samuel was arrested as a result of this incident, and criminal charges were pending at thetime of the fact-finding hearing. He was granted visitation, supervised by ACS, on November 16.On January 20, 2005, ACS sought an order suspending visitation because of Samuel's repeatedbelligerence toward ACS caseworkers, sometimes in front of the children, causing them to cry.The court granted ACS's petition.
In an oral decision after the hearing, the court determined that ACS had proven by apreponderance of the evidence that Samuel had slapped Joshua "hard enough to cause a bloodynose, bruising around his left eye and two linear marks on the side of his face," and that Samuelhad pushed food into Joshua's mouth while yelling at him to swallow. The court categorizedSamuel's behavior as "totally out of control . . . expos[ing] Joshua to the danger of avery serious injury and it's fortunate that Joshua wasn't more seriously injured . . .Based on the description that I have heard of this man and based upon his behavior in mycourtroom and based upon the observations of him during visitation I think there is somethingvery seriously wrong with this man." The court went on to state that Samuel "could have caused[Joshua] very, very severe injuries . . . all because the boy didn't eat his broccoli."
Although there was no formal dispositional hearing, the mental health services report orderedby the court described Samuel as "insulting" and "hostile." Recesses were required during theinterview to allow him to regain his composure. Samuel rationalized his behavior in hittingJoshua by saying he had "never gone over the line" and that there were "worse people out there."Eventually, the interview was terminated due to his inability to control his anger.
Family Court Act § 1012 (e) (i) defines child abuse as when a parent "inflicts or allowsto be inflicted upon such child physical injury by other than accidental means which causes orcreates a substantial risk of death, or serious or protracted disfigurement, or protractedimpairment of physical or emotional health or protracted loss or impairment of the function ofany bodily organ."
A single incident may support a finding of abuse (Matter of Pierre M., 239 AD2d 262[1997]). Moreover, "the child need not sustain a serious injury for a finding of abuse as long asthe evidence demonstrates that the parent sufficiently endangered the child by creating asubstantial risk of serious injury" (Matter of Angelique H., 215 AD2d 318, 319 [1995]).In Angelique H. (supra), the child's mother intentionally burned herfour-year-old's hand by placing it over a lit stove burner to "teach him a lesson" for playing withmatches. The child suffered second degree burns, which were treated at the emergency room.Although there was no permanent injury, we held Family Court erred in its finding that no abusecould be made in the absence of medical testimony that the child sustained an injury causing orcreating a substantial risk of protracted disfigurement or impairment. This was parental conductthat "could easily result in serious or protracted disfigurement" and such conduct creating the riskof serious injury can result in a finding of abuse, even if the child does not actually suffer theinjury.
Matter of Rosina W. (297 AD2d 639 [2002]) does not compel a different result.There an argument between the 17-year-old daughter and her father escalated when the daughterpushed her father and he retaliated by slapping her in the face, causing swelling and a bloodshoteye. [*4]The Second Department found that the age of the victim,the nature of the injuries and the isolated nature of the incident did not sustain a finding of abuse.
Here, the nine-year-old child was struck hard enough to cause bruising to the eye andlacerations around the eye. Moreover, food was forcibly shoved into the child's mouth, causinghim to gag and eventually vomit. Nor was this apparently an isolated incident, as the record isreplete with references to Samuel's uncontrollable temper and belligerence (cf. Matter of P.Children, 272 AD2d 211 [2000], lv denied 95 NY2d 770 [2000]). It is not hard toenvision what may have happened to Joshua had he fallen after being hit or if food was lodged inhis throat or esophagus during this incident. Coupled with the lack of immediate medicaltreatment and the ongoing verbal abuse heaped upon both children by Samuel, it is patently clearthat Joshua was "subjected to a substantial risk of physical injury which would be likely to causeserious or protracted disfigurement, or protracted impairment of his physical or emotional health"(Matter of C. Children, 183 AD2d 767, 768 [1992]).
It is "well settled that credibility determinations by the Family Court must be accorded duedeference since it is in the best position to assess the witnesses" (Matter of Nasir J., 35 AD3d 299,299 [2006]). The record before us offers ample evidence justifying the finding of abuse, andthere is no reason to disturb that determination.