| Matter of Christian O. |
| 2008 NY Slip Op 04121 [51 AD3d 402] |
| May 1, 2008 |
| Appellate Division, First Department |
| In the Matter of Christian O. and Another, Children Alleged to beNeglected. Juan O., Appellant; Commissioner of the Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Pamela Seider Dolgow of counsel),for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia S. Colella of counsel), LawGuardian.
Order of disposition, Family Court, New York County (Karen I. Lupuloff, J.), entered on orabout September 15, 2006, which, upon a fact-finding determination that respondent fatherneglected Christian O., and derivatively neglected Juan O., released the children tonon-respondent mother with supervision by petitioner Administration for Children's Services fora period of 12 months, unanimously reversed, on the law and the facts, without costs, insofar as itbrings up for review the fact-finding determination, the findings of neglect and derivative neglectvacated, the petitions dismissed, and the appeal otherwise dismissed.
Appellant father does not challenge the dispositional order insofar as it released the childrento their mother.
The record shows that when 11-year-old Christian arrived home significantly past his curfewwithout explanation, respondent lost his temper and kicked the mattress upon which Christianwas lying. As he did so, Christian lifted his legs, and respondent kicked him once in the ankle.Medical treatment was not required, and there is no evidence to dispute the testimony thatrespondent, who expressed remorse for his actions and maintained that the kick to Christian'sankle was accidental, had not previously used corporal punishment when disciplining hischildren. Under these circumstances, we conclude that there is insufficient evidence thatChristian suffered the requisite physical, mental or emotional impairment to support a finding ofneglect (see Family Ct Act § 1012 [f] [i] [B]; Matter of Luke M., 193AD2d 446 [1993]). This appears to have been an isolated incident, and "[w]hile losing one'stemper does not excuse striking and injuring one's child, one such event does not necessarilyestablish . . . neglect" (Matter of P. Children, 272 AD2d 211, 212 [2000],lv denied 95 NY2d 770 [2000]). [*2]Furthermore, sincethe finding of neglect is vacated, the finding of derivative neglect is also vacated.Concur—Lippman, P.J., Gonzalez, Moskowitz and Acosta, JJ.